Class 10 Case Briefs- Family Law
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Class 10 Case Briefs
Devin v. Devine
(1981):
Facts Alice Beth Clark Devine (defendant) and Christopher Devine (plaintiff) were married in 1966, had two children, and subsequently separated in 1979. Both Alice and Christopher held jobs outside the home. At the time of Alice and Christopher’s separation, both children were less than seven years old and were thus considered to fall under the tender-
years legal presumption. The trial court relied upon the tender-years presumption, which requires courts to award custody of young children to the mother if the parents are equally fit, and awarded Alice custody of the Devines’ two young children, subject to Christopher’s liberal visitation rights. Christopher ultimately appealed to the Supreme Court of Alabama.
Issue Is the tender-years presumption an unconstitutional gender-based classification under the Fourteenth Amendment?
Rule The tender-years presumption is an unconstitutional gender-based classification under the Fourteenth Amendment.
Holding Yes. The tender-years presumption is a gender-based classification that cannot withstand intermediate scrutiny under the Fourteenth Amendment to the United States Constitution.
Rationale If a child is of the tender years (meaning very young), and the parents are equally fit, the tender-years presumption requires
the trial court to award custody to the mother. The tender-years presumption assumes that the mother is better suited to care for and nurture young children.
However, the tender-years presumption is
an unconstitutional gender-based classification, because it discriminates against fathers in child-custody disputes exclusively on the basis of gender. To rebut the presumption, fathers must present clear and convincing evidence of the mother’s lack of fitness to serve as custodial parent. A gender-based classification may be justified if it is substantially related to a significant state interest, but there is no significant state interest in placing more importance upon the maternal role than the paternal role. Instead of applying the presumption to custody matters, courts should conduct a thorough factual analysis and make an individualized determination. In making an individualized determination, courts should consider: (1) the sex and age of the children; (2) the characteristics and needs of each child; (3) the respective home environments offered by the parties; (4) the characteristics of those seeking custody; (5) the capacity and interest of each parent to provide for the emotional, social, moral, material, and educational needs of the children; (6) the interpersonal relationship between each child and each parent; (7) the interpersonal relationship between the children; (8) the effect on the child of disrupting or continuing the existing custodial status; (9) the preference of each child of sufficient age and maturity; (10) the report and recommendation of any expert witnesses or other independent investigators; (11) available alternatives; and (12) any other relevant matter the evidence may disclose. In this case, the trial court must conduct an individualized analysis as to the Devine children to consider the children’s best interests. Thus, the judgment of the court of appeals is reversed, and the case is remanded to the trial court with
instructions to consider the individual facts of the case.
Dissent (Torbert, C.J.)
Over the years, the tender-years presumption has evolved into a factor to be considered, as opposed to a compelling presumption. The tender-
years presumption should remain a factor
to be considered by trial courts when determining which parent should be awarded custody.
Intermediate Scrutiny
Also known as heightened scrutiny, under
constitutional jurisprudence, a level of scrutiny between rational basis and strict scrutiny. Intermediate scrutiny is applied to determine whether a quasi-suspect classification, such as gender or legitimacy, is substantially related to the accomplishment of an important governmental purpose. Intermediate scrutiny is also applied to determine whether content-neutral restrictions of speech comply with the First Amendment.
Tender Years Presumption
The doctrine favoring mothers over fathers as the custodial parents of young children.
Palmore v. Sidoti
(1984):
Facts Anthony and Linda Sidoti, both Caucasians, were married. They had one child, a three-year-old daughter. The couple later divorced, and Linda began cohabitating with and soon remarried Clarence Palmore, Jr., an African American. After learning of this, Anthony Sidoti (plaintiff) sought sole custody of their child in Florida state court from Linda Sidoti Palmore (defendant). He cited “changed conditions” as grounds for
his petition, as well as making several allegations of instances in which Linda had not properly cared for their child. After hearing testimony from both parties,
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the Florida court made no findings of fact which indicated that the child had not been properly cared for by any of the parties involved. However, the court relied on the recommendation of a counselor and awarded custody to Anthony on the grounds that Linda had chosen a socially-unacceptable lifestyle for herself and her child by marrying an African American man, and was thus subjecting her child to racial stigma once the child entered school. The Florida Supreme Court affirmed. The United States Supreme Court granted certiorari.
Issue Whether the removal of custody of her child from a woman on the grounds that she entered into an interracial relationship violated the Equal Protection Clause of the Fourteenth Amendment.
Rule The deprivation of custody of an infant child from her mother solely because of the risk of racial biases violates the Equal
Protection Clause of the Fourteenth Amendment.
Holding Yes. Child custody in state court proceedings are rarely in the purview of the federal judiciary.
Rationale The lower court’s expression of its views about the damaging effect on the child from living in a racially-mixed household, as in the present case, raises substantial federal issues. Racial and ethnic prejudices are unfortunately still alive and
well, and the child in the present case might very well be subjected to stereotypes because she lives in a household with interracial parents. However, the existence of these biases is
not enough, by itself, to justify removing the infant child from her mother’s custody.
Permitting the removal of the child from Linda would essentially be giving these prejudices effect. The effects of racial
prejudice, no matter how potentially damaging, are not enough to justify the result upheld in the lower courts. The decision of the Florida Supreme Court is reversed.
Sagar v. Sagar
(2003):
Facts Sejal Sagar and Mahendra Sagar entered
into an arranged marriage in India after a brief acquaintance. They moved to the United States and had a daughter in 1998. Six months after her birth, the couple separated. Mr. Sagar was very controlling and had physically and mentally abused Mrs. Sagar. The divorce court awarded the Sagars joint legal custody of their daughter, whom the couple agreed to raise in accordance with
their Hindu religion. A disagreement arose over whether the daughter should undergo a ritual known as Chudakarana. The ritual required shaving the girl’s head, applying a mark to it, and bestowing blessings. It was to be done before her third birthday but could be delayed if the father atoned. Mr. Sagar desired that the daughter undergo the ritual, which was intended to promote good health. Mrs. Sagar did not want the ritual performed. She questioned its necessity as neither she nor other family members had participated in it. She also questioned her husband’s sincerity given that he never asked before their marriage
whether she had undergone the ritual. Mr.
Sagar argued before the trial court that his right to demand that the ceremony be performed was protected by his constitutional right to free exercise of religion. The trial court ordered that the parents’ decision regarding the Chudakarana be delayed until the child was old enough to decide for herself. The
court also appeared to find that the father’s right to free exercise was not
implicated in the matter because his insistence on the Chudakarana was based on his desire for control rather than
a sincerely held belief. An appeal was taken.
Issue Where parents disagree over their child’s participation in the Hindu ritual of Chudakarana, may the court delay the decision until the child is old enough to decide on her own?
Rule Where parents disagree over their child’s participation in a religious ritual, delaying the decision until the child is old enough to make it avoids infringing upon the parents’ rights to free exercise of religion and due process.
Holding Yes. First, the trial court was in error to the extent of its conclusion that Mr. Sagar’s insistence on the Chudakarana was not a sincerely held religious belief.
Rationale Even if his motivation was partly due to control issues, that does not mean that he lacked a sincerely held belief. The crux of the dispute in this case is a conflict between two constitutional rights: Mr. Sagar’s right to free exercise of religion and Mrs. Sagar’s fundamental due process right to manage the upbringing of her daughter. Permitting the
Chudakarana, as Mr. Sagar desires, respects his right to free exercise but infringes upon Mrs. Sagar’s right to due process. Conversely, barring the Chudakarana, as Mrs. Sagar desires, respects her fundamental due process right at the expense of Mr. Sagar’s right to free exercise. Because neither course of action would cause demonstrable harm
to the child, the state lacks a sufficiently compelling interest in either allowing or preventing the ritual. Under these circumstances, the trial court’s decision to
delay the ritual until the daughter is old
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enough to make her own decision was an
appropriate, narrowly drawn accommodation that respects the interests of all parties involved. Consequently, the decision of the trial court is affirmed.
Fundamental Right
Is a matter of constitutional law, a significant and deep-seated liberty right whose impairment by state action is subject to the highest level of scrutiny.
Free Exercise
The right to be free from government interference into free exercise of one’s religious beliefs.
Legal Custody
A parent or guardian's obligation to provide care and maintenance for, and power of control over, a child.
In Re Marriage of Black
(2017):
Facts Rachelle K. Black (plaintiff) and Charles W. Black (defendant) married and had three sons together. Rachelle served as the primary caregiver, and Charles worked outside the home. The family attended a Christian church, and the children attended a Christian school. The children were indoctrinated to believe that
homosexuality was a sin. In 2011, after the Blacks had been married for almost 20 years, Rachelle disclosed that she believed she was gay. Rachelle stopped attending the church, entered a new relationship, and began spending time away from the family. Charles became the children’s primary caregiver while still remaining employed. The Blacks filed for divorce, and the court held a custody hearing. At the hearing, the children’s therapist and their guardian ad litem testified. The therapist testified that she believed that Charles was a more stable parent. The guardian ad litem testified that she believed Charles should be
awarded custody. The guardian ad litem explained that Rachelle’s lifestyle choice conflicted with the children’s religious beliefs and that the children might be bullied because of Rachelle’s same-sex relationship. The guardian ad litem further
recommended granting Charles control over whether Rachelle’s partner could have contact with the children and recommended that Rachelle be prohibited from discussing her alternative lifestyle with the children. The trial court awarded Charles primary custody on the ground that Rachelle’s sexual orientation conflicted with the children’s religious upbringing and prohibited Rachelle from discussing her alternative lifestyle with the children. Rachelle appealed. The Washington Court of Appeals affirmed most of the trial court’s decision. Rachelle
appealed to the Washington Supreme Court.
Issue Does a trial court err by failing to remain neutral regarding a parent’s sexual orientation during a custody proceeding?
Rule A trial court errs by failing to remain neutral regarding a parent’s sexual orientation during a custody proceeding.
Holding Yes. A trial court errs by failing to remain neutral regarding a parent’s sexual orientation during a custody proceeding.
Rationale Under Washington law, courts are required to follow the nexus approach in considering a parent’s sexual orientation for a custody determination. The nexus approach requires that a court remain neutral regarding a parent’s sexual orientation and only consider it upon a showing of harm to the child. A court may not make a custody determination on the ground that a parent’s sexual orientation led to the divorce or the potential that children may be bullied because of their
parent’s sexual orientation. In 1996 the Washington Court of Appeals considered a similar case, in which a father filed for divorce from the mother after realizing he was gay. The court held that the children had been raised as Jehovah’s Witnesses and believed homosexuality was sinful. The court awarded the mother custody because of the conflict between the father’s sexual orientation and the children’s beliefs. However, that case was
decided before courts began to recognize
the importance of protecting individuals identifying as lesbian, gay, bisexual, and transgender from discrimination and before caselaw established equal rights regardless of sexual orientation. Here, the trial court did not remain neutral regarding Rachelle’s sexual orientation. The court improperly relied on the guardian ad litem’s testimony concerning Rachelle’s sexual orientation, which was riddled with biases, absent a showing of harm. The fact that the children have been taught that homosexuality is a sin and the potential of the children being bullied are not sufficient to show harm. Moreover, the recommendation that Rachelle be prohibited from discussing religion and her alternative lifestyle with the children is an unconstitutional restriction of conduct. The trial court is reversed.
Guardian Ad Litem (GAL)
A representative, usually an attorney, appointed by the court to represent the interests of one who is deemed incompetent, because of youth or otherwise, for a single court proceeding.
Child Custody
An adult’s rights to have a child live with the adult and to make legal decisions on the child’s behalf.
Peters-Riemers v. Riemers
(2002):
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Facts Jenese Peters-Riemers (plaintiff) and Roland Riemers (defendant) met in 1995,
had a son together in 1997, and were married in 1999. Peters-Riemers filed for divorce on the grounds of adultery, extreme cruelty, and irreconcilable differences. The trial court awarded custody of the child to Peters-Riemers and granted limited, supervised visitation rights to Riemers. In support of its decision, the court issued specific findings regarding Riemers’ physical abuse of his wife. In February 1997, Riemers kicked his wife in the stomach while she was pregnant, which necessitated medical treatment. In March
2000, Riemers fractured his wife’s face. After being criminally charged on the basis of that incident, Riemers pleaded guilty to a lesser charge of misdemeanor assault. An Adult Abuse Protection Order was also issued against him. The court also documented other incidents of abuse
as well as evidence of Riemers’ adultery. The court found that Peters-Riemers may
have fought back against Riemers during some of their altercations but her conduct
was deemed to be in self-defense. Riemers appealed the court’s custody decision, challenging the conclusions that
he committed domestic violence and extreme cruelty.
Issue Did the court err in awarding custody to a mother, with limited visitation rights granted to the father, given evidence that the father physically abused the mother numerous times and seriously injured her
at least once?
Rule North Dakota law requires a court to consider evidence of domestic violence in
determining child custody and visitation, and where credible evidence shows a pattern of domestic violence or a single incident resulting in serious bodily injury, a rebuttable presumption arises against
awarding custody to the perpetrator.
Holding No. North Dakota law requires a court to consider evidence of domestic violence in
determining child custody and visitation.
Rationale If a pattern of violence or a serious injury is shown, a presumption arises that the abusive parent should not be given custody unless that parent proves by clear and convincing evidence that the best interests of the child would be served by the parent’s participation in custody. The trial court must issue specific findings in support of its custody decision. Here, the court adequately complied with the law. The court issued specific findings, all supported by the evidence, demonstrating both a pattern of
abuse and a serious injury committed by Riemers. The fact that Peters-Riemers may also have acted out in violence toward Riemers does not change the analysis because her conduct was less serious and was motivated principally by self-defense. The court also did not err in concluding that Riemers acted with extreme cruelty. Extreme cruelty is found where one spouse inflicts serious physical injury or psychological harm upon the other. The evidence of Riemers’ violence and numerous affairs satisfies the definition. Accordingly, the judgment of the trial court is affirmed.
Rebuttable Presumption
A factual or legal inference that may be challenged by the introduction of contradictory evidence or argument.
Domestic Violence
Physical assault or other abuse of a person with whom the perpetrator has an intimate relationship.
Extreme Cruelty
A ground for divorce based on a spouse’s
physical violence toward the other or conduct that causes the other serious
mental suffering.
Bell v. Bell
(1990):
Facts Greg Bell (plaintiff) and Debra Bell (defendant) married in 1986, had a son, then separated in 1987. After Mr. Bell filed for divorce, the court entered a partial divorce decree that reserved its decision on child custody. During the marriage, Mr. and Mrs. Bell shared parenting responsibilities equally. Because both were employed, a regular babysitter, Sharon Nollman, often watched the child. After separating, Mr. and Mrs. Bell agreed to share custody switching off every week or so. They both
used Nollman as a babysitter and were accommodating and cooperative with each other in all respects. After several months, Mrs. Bell began placing the child in daycare instead of using Nollman. Mr. Bell continued using Nollman during his custodial periods. This issue of childcare was the only dispute between the parties regarding their son. Upon reviewing the case, a custody investigator recommended that the parents continue to share legal custody but that the child be assigned permanent residence with Mrs. Bell. Mrs. Bell approved of that recommendation. The trial court, however, awarded both legal and physical custody of the child solely to Mrs. Bell on the ground that the couple could not adequately cooperate with respect to their child’s interests. Mr. Bell was granted biweekly weekend visitation rights, weekly visitation on Wednesday nights, and periodic one-week visitation periods. He appealed.
Issue If there is strong evidence that parents are equally capable, desirous, and cooperative in regard to the care and upbringing of their child, does a single
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disagreement over raising the child warrant awarding sole legal and physical custody to one parent?
Rule If there is strong evidence that parents are equally capable, desirous, and cooperative in regard to the care and upbringing of their child, a single disagreement over raising the child does not warrant awarding sole legal and physical custody to one parent.
Holding No. Alaska law supports shared custody arrangements where it is in the best interests of the child.
Rationale Even if one parent has physical custody, the law favors joint legal custody. Based on the evidence presented in this case, the trial court erred in awarding sole custody to Mrs. Bell. With the exception of a single disagreement over childcare, the parties were completely cooperative with and accommodating to each other. The custody investigator recommended joint legal custody, and Mrs. Bell did not oppose the recommendation. In light of the evidence and the legislature’s support
for joint custody, the decision of the trial court was faulty. The decision regarding legal custody is reversed and remanded with instructions to enter an order of joint legal custody. The decision regarding physical custody is vacated and remanded for further consideration in light
of the joint legal custody order.
Legal Custody
A parent or guardian's obligation to provide care and maintenance for, and power of control over, a child.
Physical Custody
The right of one having legal custody of a
child to have the child reside with him or her.
Hanke v. Hanke
(1992):
Facts Mary Elizabeth Hanke and Dan Hanke separated after Mrs. Hanke’s 11-year-old daughter from an earlier marriage told her
mother than Mr. Hanke had sexually abused her. The incident of sexual abuse occurred just once, while Mr. Hanke was drunk, but he had physically abused the same stepdaughter in a manner involving
sexual undertones for a long period before then. Mr. Hanke admitted to the sexual abuse, was criminally charged, and received a suspended sentence as a result of a plea bargain. At the time of the parties’ separation, Mrs. Hanke was pregnant and eventually gave birth to a daughter. The couple divorced in August 1990 when the daughter was three or four years old. In March 1991, the court awarded Mr. Hanke four-hour unsupervised visitation periods with the daughter every other week. In May 1991, the couple’s daughter told a teenage family friend that Mr. Hanke had touched her in an inappropriate place. Mrs. Hanke
observed scarring in the girl’s genital area
and brought her to a medical facility for examination. The doctor reported that prior abuse could not be excluded. Mr. Hanke was examined by a mental health evaluator by court order. The evaluator recommended that Mr. Hanke be prohibited from spending time alone with his daughter. Mr. Hanke’s attorney, along with attorneys representing the child and the county department of social services all recommended that any visitation between Mr. Hanke and his child be supervised. A small amount of evidence suggested that Mrs. Hanke was overreacting and that Mr. Hanke was not a threat. At some point, Mrs. Hanke relocated with the child to her home state of Kentucky, an event that clearly irritated the judge. In August 1991, the court granted Mr. Hanke overnight visitation with his daughter. One of four friends of
Mr. Hanke was to be present during such visits. Because Mrs. Hanke refused to allow visitation, the court had the child removed from her custody. Mrs. Hanke appealed.
Issue Is it within the discretion of the trial court to grant a father overnight visitation with his four-year-old daughter where the totality of the evidence, on balance, suggests that the father committed child sexual abuse?
Rule Where there is strong evidence that a parent committed child sexual abuse, any
visitation granted must adequately protect
the child by being supervised by monitors
satisfactory to all parties and by taking place in a specified location.
Holding No. The principal consideration in custody
and visitation cases is the child’s best interests.
Rationale Here, the record shows strong evidence of Mr. Hanke’s sexually and physically abusive conduct, combined with unanimous recommendations that he not be allowed unsupervised visitation. The evidence in favor of Mr. Hanke, on the other hand, was negligible. Under the circumstances, the trial court clearly abused its discretion. The court’s decision
appears to derive from its annoyance with
Mrs. Hanke more than its assessment of the child’s interests. At a minimum, the court should have restricted visitation to a
specified location overseen by supervisors satisfactory to both parties. Accordingly, the decision of the trial court is vacated.
Judicial discretion
A court’s authority to make a decision, based on an exercise of judgment and guided by legal principles and context, where a claimant is not entitled to a
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particular decision.
Visitation Right
The court-ordered right of a noncustodial parent or grandparent to spend time with a child or grandchild.
Turner v. Turner
(1995):
Facts Rebecca Turner (plaintiff), now Turpin, and Charles Turner (defendant) had two children before divorcing in August 1990. The divorce court granted custody to Turpin and visitation rights to Turner. Turner was ordered to pay $704.13 per month in child support as well as the children’s medical-insurance costs. He unsuccessfully sought to have the support payment reduced post-trial. In November 1990, Turpin moved to have Turner held in contempt for failure to pay support. He admitted the delinquency, alleging incapacity to pay. The court denied his request for a reduction. Turner
made a catch-up payment but quickly fell behind again. The court held him in contempt in February 1991 because of nonpayment. Turpin filed another contempt motion in December 1993, alleging that Turner had abused and harassed her and the children and that he
was far behind in his child-support obligations. After an ex parte hearing, the court had Turner arrested and suspended
his visitation rights. The court again denied a motion by Turner to reduce his payment obligations. In February 1994, the court held Turner in criminal contempt
for abusing and harassing Turpin and the children and also held him in civil contempt for his child-support delinquency. He was sentenced to 10 days in prison on the criminal finding and six months on the civil charge, which would be lifted if he paid $40,908.86. Turner did not make the payment, and his
visitation rights were summarily
suspended. In December 1994, the court again denied a motion by Turner to reduce his support obligations. He appealed the court’s suspension of visitation.
Issue May a court suspend a noncustodial father’s visitation rights on the basis of his
failure to pay child support where he alleges, without contradictory evidence, that he cannot afford to pay?
Rule Under Tennessee law, a parent’s visitation rights should not be suspended on account of nonpayment of child support unless the parent is financially capable of paying support but intentionally refuses to do so.
Holding No. The best interests of the children dictate decisions regarding child custody and visitation.
Rationale A suspension of visitation is warranted where there is evidence of parental neglect; it should not be used as a penalty for nonpayment of support. In this
case, the record does not justify suspension of Turner’s visitation rights. There is no evidence that Turner’s failure to pay support has impacted his children’s best interests. In spite of his delinquency, the children’s basic needs are being met. The suspension or curtailment of visitation rights on account of nonpayment should be imposed only where a noncustodial parent chooses not to comply with support obligations despite
being financially able to do so. Here, the trial court did not make the specific determination required to suspend Turner’s visitation rights. Consequently, the decision is vacated and remanded for
further consideration.
Ex Parte
Describing a judicial action or proceeding conducted for one party’s benefit only,
without presenting the adverse party an opportunity to be heard.
Visitation Right
The court-ordered right of a noncustodial parent or grandparent to spend time with a child or grandchild.
Contempt
Conduct that violates a court order or the court’s integrity, thereby rendering the contemnor subject to penalties.
Troxel v. Granville
(2000):
Facts A Washington statute permitted any person to petition a superior court in the state for visitation rights at any time and authorized the court to grant such visitation rights whenever visitation might serve the best interest of the child. Jenifer
and Gary Troxel (plaintiffs) petitioned a Washington Superior Court for the right to
visit their paternal grandchildren after their son, the children’s father, committed suicide. Tommie Granville (defendant), the mother of these children, opposed the
petition. The Washington Superior Court granted visitation rights to the Troxels, but
the Washington Supreme Court reversed and held that the Washington statute unconstitutionally interfered with the fundamental rights of parents to rear their
children. The United States Supreme Court granted certiorari.
Issue Whether a Washington statute that permits any person to petition a superior court for visitation rights at any time, and permits the court to grant such visitation if
it is in the best interest of the child, violates the Due Process Clause protections of a parent’s right to rear his or her child.
Rule Under the Due Process Clause, a state court may not grant visitation rights to a person, even when doing so would be in
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a child’s best interest, if those visitation rights are opposed by the child’s parent because doing so interferes with the parent’s fundamental liberty interest in rearing his or her child.
Holding Yes. There is difficulty in attempting to define the concept of the “average” American family because the composition
of families varies tremendously across the nation.
Rationale Many states have passed similar non-
parental visitation statutes to that in Washington because they recognize the reality that grandparents and other relatives often play significant roles in the rearing of children. The extension of visitation rights to a non-parent third party
is often accompanied by certain “costs” and can sometimes put significant strain on a parent/child relationship. The liberty interest of parents in the care, custody, and control of their children is one of the oldest interests recognized by the Court as absolutely protected by the Due Process Clause. Applying these principles to the present case, the Washington statute, as applied to Granville and her family unconstitutionally
infringes on that fundamental parental right. The statute is overly broad in that it does not require any deference to a parent’s decision that visitation by a third party will not be in his or her child’s best interest. The Washington Supreme Court upheld the statute for no reason other than a disagreement over visitation existed between Granville and the Troxels. This decision is not based on any showing by the Troxels that Granville is an unfit parent, or that she seeks to cut
off visitation completely between her children and their grandparents. On the contrary, Granville merely seeks to limit visitation with her deceased husband’s parents after his death because she
believes it is in the best interest of her own children. The statute is unconstitutional, and the decision of the Washington Supreme Court is affirmed.
Concurrence (Souter, J.)
The Washington court acted in accordance with the Supreme Court’s prior jurisprudence involving Due Process
Clause issues. The majority need not have considered whether an actual harm exists in granting visitation rights to the Troxels, nor attempted to define the scope of a parent’s right or its necessary protections. The Washington statute could have been invalidated on its face simply because it is vastly overbroad.
Concurrence (Thomas, J.)
Neither party argued that the Court’s substantive due process cases were wrongly decided, or that the Court’s original understanding of the Due Process Clause precludes judicial enforcement of rights not enumerated under the Due Process Clause. The plurality’s recognition of a fundamental right of parents to rear children is enough to fully decide the issues before the Court. However, the plurality fails to articulate a standard of review for such cases.
Dissent (Scalia, J.)
The right of parents to rear their children is fundamental and should be protected to the exclusion of other rights, but no such right is enumerated in either the Constitution or the Declaration of Independence. The plurality should have declined to invalidate the Washington state law on the grounds that it infringed upon a right not enumerated in the Constitution.
Dissent (Stevens, J.)
The Washington Supreme Court merely requires its state legislature to draft a better version of the current statute; instead the Court should have completely
denied certiorari. However, because the
Court addressed the merits, it would have
been wiser to recognize that the Washington Supreme Court rendered a federal constitutional judgment holding a state law invalid on its face. In light of that
judgment, the Court should have confronted the federal questions raised by the case directly.
Dissent (Kennedy, J.)
The state supreme court held that the statute is flawed because it awards visitation to a non-parent without a finding
that harm to the child would result if visitation were withheld. In effect, the state supreme court appears to hold that a “best interest of the child” (BIC) standard is never applicable in third-party
visitation cases. Although there might be visitation cases in which the BIC standard
will not adequately protect a parent’s right
to raise his or her child, a requirement that a harm to the child standard be used in every instance is too broad. The case should be remanded with instructions to reconsider the case under the BIC standard.
Liberty Interest
Individual freedoms that, if not constitutionally enumerated, are either inherent in theories of constitutional liberty or based in state-created positive law as found in a state’s statutes or regulations.
In Re C.A.C.
(2017):
Facts The child was born as a result of artificial insemination during the course of a long term same-sex relationship between Dr. Lisa Colon and Victoria Adjmi. Dr. Colon carried and gave birth to the child. During
the course of their relationship, Dr. Colon executed several documents referring to Adjmi as her “life partner,” and granting Adjmi full and unlimited authority to transact affairs with regard to the care
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and upbringing of the child. After the parties separated in 2014, Adjmi filed the present Petition for Custody seeking joint custody pursuant to La. C.C. art. 133. Dr. Colon filed exceptions of no cause of action, no right of action, and vagueness to the custody petition. The Trial Court denied the exceptions and appointed Tina
Chaisson as the custody evaluator. Chaisson submitted a report, in which she applied the “best interest of the child”
legal standard. Adjmi filed a motion requesting the Court to instruct Chaisson to apply the “substantial harm to the child” legal standard as defined by La. C.C. art. 133 relating to a custody claim by a non-parent. The Court granted that motion and Chaisson filed a supplemental report in compliance with that order. Both reports recommended an
award of joint custody. After going on trial,
the Trial Court rendered judgment in Adjmi’s favor, awarding joint custody and setting forth detailed visitation rights. Dr. Colon appealed, asserting that the Trial Court violated her constitutionally protected fundamental rights as a natural parent in the award of joint custody and liberal visitation to a non-parent, and in finding substantial harm to the child sufficient to deny an award of sole custody to a biological parent.
Issue Did the trial court err in granting joint custody and liberal visitation to a non-
parent?
Rule There is no question that the non-parent bears the heavy burden of proof in a custody contest. The dual prong test to determine whether the non-parent has met that burden is as follows: in a conflict between a parent and a non-parent, the parent enjoys the paramount right to custody of a child and may be deprived of
such right only for compelling reasons.
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The test to determine whether to deprive a legal parent of custody is a dual-
pronged test: first, the trial court must determine that an award of custody to the
parent would cause substantial harm to the child; if so, then the courts look at the best interest of the child factors to determine if an award of custody to the non-parent is required to serve the best interest of the child.
Holding No.
Rationale The Court held that the trial court did not abuse its discretion in granting joint custody of a minor child to a biological mother and her former life partner because a complete analysis of all the relevant factors in La. Civ. Code Ann. art. 134 showed that an award of joint custody with liberal visitation was in the child's best interests, and that separation from either of them would cause the child to suffer substantial harm. Moreover, the Court noted that the documents showing the biological mother's confidence in the partner as a good parent, that she viewed
the partner as the child's other parent were relevant under La. Code Evid. Ann. art. 401 to show the depth of the emotional bonds. The Court further held that the facts and circumstances did not fit within the intent or purpose of La. Civ. Code Ann. art. 133 because the biological
mother was not unfit and the partner was not the third party envisioned by the legislature.
McMillen v. McMillen
(1992):
Facts When Vaughn McMillen (plaintiff) and Carolyn Shemo (defendant), formerly McMillen, divorced in 1981, Shemo was awarded primary custody of the couple’s son, Emmett. McMillen was granted visitation rights. Over the next several
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years, McMillen succeeded in gaining additional visitation rights. Beginning in 1986, Emmett expressed a desire to live with his father rather than his mother. Emmett had a worse relationship with his mother and stepfather than with his father
and stepmother who took a more active role in the boy’s life. He claimed that the stepfather harassed and frightened him. In 1988, the trial court awarded general custody of the boy to McMillen. The court found both parents’ homes to be equal and therefore awarded custody to McMillen on the basis of Emmett’s custodial preference. Upon Shemo’s appeal, the Superior Court vacated the order of the trial court and reinstated Shemo as the primary custodian. The Superior Court reasoned that the evidence did not justify a change of custody and that Emmett’s preference was not an indication of his best interests.
McMillen appealed.
Issue Is it proper for a trial court to change a 10-year-old child’s primary custodian from
the mother to the father after finding that the home of each parent was equally adequate but that the child reasonably preferred to live with his father?
Rule Where the relevant factors for a child-
custody decision favor both parents equally but the child expresses a reasonable preference to live with one parent over the other, the court has discretion to award custody to the preferred parent even if that means switching custody from one parent to the other.
Holding Yes. A trial court’s factual determinations in a custody proceeding must not be ignored unless they demonstrate a gross abuse of discretion.
Rationale In this case, the trial court’s
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determinations were supported by the evidence. The court found that the homes
of Emmett’s mother and father were equally adequate. Thus, the boy’s desire to live with his father shifted the balance to the father as custodian. While a child’s custody preference is not controlling, it should be considered by the court where it is based on good reason. Here, Emmett
was nearly 11 years old when he testified, and his preference to live with his father was supported by good reasons. Thus, the trial court did not abuse its discretion in relying on Emmett’s preference as a factor in its decision. The decision of the Superior Court is reversed.
Hoskins v. Hoskins
(2015):
Facts Melissa Hoskins (plaintiff) filed a motion to modify the equal timesharing her ex-
husband Cory Hoskin (defendant) had with their son. The trial court appointed an attorney as a guardian ad litem (GAL) to represent the child’s interests and ordered the GAL to file a report. After reviewing the report, the court modified timesharing such that the child resided primarily with Melissa and awarded Cory visitation. Cory appealed.
Issue May a guardian ad litem appointed to represent a child also investigate the family situation, file a report, and make recommendations in the same custody or
visitation proceedings?
Rule A guardian ad litem appointed to represent a child may not also investigate
the family situation, file a report, and make recommendations in the same custody or visitation proceedings.
Holding No. A guardian ad litem appointed to represent a child may not also investigate
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the family situation, file a report, and make recommendations in the same custody or visitation proceedings.
Rationale Since the filing of this appeal, the Kentucky Supreme Court decided that a GAL cannot simultaneously represent a child and act as an investigator and advisor known as a friend of the court (FOC). Under Kentucky statute, courts may appoint an FOC to investigate the family’s situation, file a report, and make custody recommendations. Having one person play both roles conflicts with the ethical rules and violates due process. Because a GAL is an attorney who advocates for the child, a GAL is bound by the ethical rules requiring client loyalty and confidentiality. That means a GAL cannot be a witness in the same proceedings and cannot be cross-
examined. On the other hand, an FOC is an officer of the court who is a witness and can be cross-examined. Parents have a protected liberty interest in the care and custody of their children. Therefore, in custody proceedings, due process requires an opportunity for parents to confront adverse evidence and
cross-examine witnesses. As a result, the
Supreme Court of Kentucky ruled that a family court may either appoint an FOC to
investigate and report recommendations, or a GAL to represent the child, but not one person to do both. The family court here ruled before that decision and mistakenly appointed one person in both roles. Melissa argues that error was harmless. However, because the court did not recite what evidence supported its
decision, it is impossible to tell whether the GAL report made a difference. Therefore, the appellate court reverses and remands for further proceedings.
Friend of the Court
A person, who does not have to be an attorney, who is appointed as an officer of
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the court to investigate, file a report, and make recommendations in custody or visitation proceedings.
Guardian Ad Litem (GAL)
A representative, usually an attorney, appointed by the court to represent the interests of one who is deemed incompetent, because of youth or otherwise, for a single court proceeding.
In Re Rebecca B.
(1994):
Facts When Renee B. (plaintiff) and Michael B. (defendant) divorced in 1986 after five years of marriage, the court awarded Renee sole custody of the couple’s daughter, Rebecca. Michael was granted visitation, including overnight stays. In 1992, Renee petitioned to terminate Michael’s unsupervised visitation rights after learning that Michael and eight-year-
old Rebecca were sleeping in the same bed. Michael cross-petitioned, seeking sole custody of Rebecca. Three experts
—the Clinical Director of the Family Court
Mental Health Service, an additional psychiatrist, and a supervising social worker—recommended that custody be transferred after meeting with Rebecca and the parents. The child’s law guardian also recommended transfer. There was no evidence that the sleeping arrangement between Michael and Rebecca was anything but innocent, and it lasted just one year. A psychiatrist hired
by Renee recommended that the mother retain sole custody, but the psychiatrist’s opinion was based solely on interviews with Renee and people referred by her, not including the father or the daughter. Evidence was offered that Rebecca preferred to live with her father, that she had a closer relationship with him, that the mother was a severe disciplinarian who spanked and slapped the girl and locked her in her room, and that Renee
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was determined to keep Michael out of Rebecca’s life. Without providing explanation, the court found the testimony of the three experts who recommended transfer to be “flawed” and
not credible. He denied Michael’s petition and affirmed Renee as Rebecca’s sole custodian. Michael appealed.
Issue Was it erroneous for a court to deny a transfer of custody from a mother to a father where three experts recommended
transfer after meeting with all parties, the child had a more loving relationship with the father than the mother, who punished the girl harshly, and the mother was determined to exclude the father from his daughter’s life?
Rule A transfer of custody from one parent to the other is justified where credible experts recommend transfer as being in the best interests of the child, the child reasonably prefers that custody be transferred, and the current custodial parent is determined to keep the other parent out of the child’s life.
Holding Yes. Custody decisions are guided by the
child’s best interests.
Rationale A change in custody is warranted only where the movant demonstrates a substantial change of circumstances. With respect to custodial proceedings, a reviewing court holds as broad authority as the trial court. After reviewing the record in this case, this court concludes that the decision of the trial court did not have a sound and substantial basis. Evidence of Rebecca’s preference to live with her father, the closeness of their relationship, the mother’s harshly punitive
behavior, and the mother’s determination to keep the father out of Rebecca’s life, demonstrate a substantial change of circumstances warranting transfer of
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custody. Moreover, contrary to the court’s conclusion, there is no apparent reason to discount the expert testimony favoring transfer. The court should have accorded less weight, on the other hand, to the mother’s psychiatrist, given the limited basis for the psychiatrist’s recommendation. In accordance with the foregoing, the decision of the trial court is reversed. Any further custodial proceedings between the parties are to be handled by a different judge.
Changed Circumstances
A change in a situation that may affect parties' ability to perform according to a contract, such as impossibility, impracticability, or frustration of purpose. In family law, changed circumstances can
be a basis for modifying an award of spousal or child support.
Law guardian
One with the power and obligation to oversee a person or property on account of incompetency resulting from youth, disability, or other incapacity.
McLaughlin v. Superior Court
(1983):
Facts Thomas McLaughlin (plaintiff) and Linda McLaughlin had three children when they decided to divorce. The parties each moved the court for custody. Under California law, custody and visitation disputes were to be mediated before a judicial hearing was held. If the mediation
was unsuccessful, the mediator could, but was not obligated to, make a custody or visitation recommendation to the court in accordance with local court rules. The Superior Court (defendant) with jurisdiction over the McLaughlin matter had implemented a local rule requiring mediators to make recommendations to the court in the event mediation were unsuccessful. In order to maintain the confidentiality of mediation proceedings,
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the mediators were not allowed to provide
the bases for their recommendations. Nor
were the parties allowed to cross-
examine the mediator as to such bases. Courts in other counties established different rules regarding mediation recommendations. Prior to mediation in the McLaughlin case, Mr. McLaughlin moved the court for a protective order stating that, in the event mediation was unsuccessful, the mediator would be prohibited from providing a recommendation to the court unless cross-examination were allowed. The court denied Mr. McLaughlin’s motion because it was contrary to the local rule. Mr. McLaughlin sought a writ of mandate from the Supreme Court of California, which then asked the Court of Appeal to consider the constitutionality of the local rule.
Issue Is a local court rule constitutional where it
requires mediators in child-custody disputes to make recommendations to the court but denies the parties an opportunity to cross-examine the mediator as to the bases for his or her recommendations?
Rule It is unconstitutional to require mediators in child-custody disputes to make recommendations to the court without allowing the parties an opportunity to cross-examine the mediator as to the bases for his or her recommendations.
Holding No. The California statute does not require mediators to provide recommendations to the court nor does it speak to cross-examination.
Rationale Thus, the statute allows local courts to determine such matters as they see fit. That said, the courts are still bound by the Constitution. Here, the Superior Court’s requirement that mediators
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provide recommendations on disputed issues without permitting cross-
examination by the parties is unconstitutional. It is further problematic that superior courts in different jurisdictions have set forth different rules with respect to mediation of custody disputes. The result is that due process rights are protected in some jurisdictions but not others. The court’s holding today is designed to abolish that disparity. Because the local rule at issue is unconstitutional, Mr. McLaughlin should receive a writ of mandate preventing the Superior Court from receiving the mediator’s recommendations unless the parties can compel the mediator to testify and be cross-examined, or else waive that right.
Writ of Mandamus
An order from a higher court to a lower court, public agency, governmental entity,
or governmental official directing the recipient to perform an act on the grounds that it is legally required or appropriate. A writ of mandamus is also known as a writ of mandate.
Fifth Amendment Due Process Clause
Prohibits the federal government from depriving an individual of life, liberty, or property without due process of law. The purpose of this clause is to prevent abuse
of government authority in legal proceedings. Due process also requires that the federal government use fair methods or procedures when its actions would deprive an individual of life, liberty, or property.
Local rule
A court-issued rule intended to supplement procedural rules generally applicable to all courts within a particular jurisdiction.
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