Divorce Law and Family Law

Rodrigue v. Brewer, 667 A.2d 605 (Me. 1995).

NATURE OF THE CASE: This family law case involved an appeal from a court order of shared custody.

FACTS: H and W were married in 1989, separated less then three months later, and permanently separated in 1992 when their son was 2.5 years old. The court found that while shared parental rights were called for, their inability to separate themselves from their marital conflicts compelled the court to establish a detailed plan for parental contact and to allocate certain functions between parents. The court ordered that the primary residence was to change every four weeks. W was granted parental rights over religious upbringing and H was granted parental rights over education. The Superior court reviewed the order and found that the order was not clearly erroneous or an abuse of discretion. This appeal resulted.

ISSUE: Is it a clear abuse of discretion for a trial court to disregard expert testimony?

RULE OF LAW: No. It is not a clear abuse of discretion for a trial court to disregard expert testimony.

HOLDING AND DECISION (Dana): W complains that it is not in the child’s best interests for his primary residence to alternate monthly between bilingual households. However, the trial court determined that both parents were fit but that they were merely unable to get along with each other and that at the time of the hearing the child was rotating between households every two or three days. The trial court merely allocated responsibilities to each parent and decreased the frequency of transfers to one per month. There was expert testimony to support this decision although there was also expert testimony to not support the decision. From this record there is nothing that was clearly erroneous or an abuse of discretion by the trial court.

DISPOSITION: Affirmed.

Dissent (Rudman): A court must act within the bounds of discretion in assigning parental rights and responsibilities. The Legislature has determined that the court apply equity based principles to custody determinations. A judge is not a mere arbiter. A judge must act as parens patriae to do what is best for the interests of the child.

The testimony of the three experts does not support the court’s order assigning shared responsibility. The linguist’s testimony is to be discarded as he refused to give an opinion on anything other than the virtue of bilingual education and he properly and justly refused to give an opinion about shuttling the child back and forth every four weeks. The other experts advised against joint custody unless there was a third party mediator involved. The parties have been determined to be incapable of resolving their own conflicts.

In re Marriage of Kovacs, 121 Wn.2d 795, 854 P.2d 629 (Wash. 1993).

NATURE OF THE CASE: This family law case involved a dispute over a presumption of custody to a primary care parent prior to dissolution of the marriage.

FACTS: H and W were married in 1982 and had three children. H owned a small janitorial business and W worked in a restaurant. During the marriage W stayed home and cared for the children while H worked. H was forced to sell his business in 1984. H worked for the new owner but was fired in 1988. H sought to relocate to California for better job prospects and W moved with the children to Spokane to live with her parents until H could get established. H found a job and established a new family home in Irvine. W visited the new home but did not tell H that she was planning a dissolution of the marriage until H arrived in Spokane to move the family.

Testimony before the trial court indicated that W was the primary care giver. Evidence was presented however showing that W had left the children alone to pursue a new paramour and had been cited twice for drunk driving. She was arrested for DUI after an accident in 1989. The children were in the car at the time and were placed in foster care for two days.

An expert hired by H met with both parents and determined that W had a personality disorder that would affect parenting. Another expert hired by W recommended that the children be placed with the mother but had never met with D and had only met W a few days before the trial. W’s counselor testified that children were capable of getting along without a lot of things but could not get along well without nurturing from the mother.

The trial court awarded custody to H. The Court of Appeals reversed holding that placement with the primary care giver was required unless the child had been harmed by the conduct of the primary caregiver. This appeal resulted.

ISSUE: Is there a rebuttable presumption in favor of placement with the primary caregiver absent proof that the primary caregiver has harmed the children in any way?

RULE OF LAW: No. There is no rebuttable presumption in favor of the placement of children with the primary caregiver absent proof that the primary caregiver has harmed the children in any way.

HOLDING AND DECISION: The Parenting Act of 1987 requires consideration of seven factors and provides that the child’s relationship with each parent be the factor given the greatest weight in determining the permanent residential placement. The Act encourages the creation of parenting plans that are in the best interests of the children. Residential placement is to be determined from the best interests of the child. A trial court has broad discretion for placement of children and its decisions should only be reversed upon an abuse of discretion. The Court of Appeals determined that this trial court abused its discretion because it failed to find circumstances supporting a change of placement from the primary caregiver based on the presumption of the primary caregiver. The Act clearly states that in entering a permanent parenting plan, the court shall not draw any presumptions from the provisions of the temporary parenting plan. It is thus clear that the Legislature did not intend to create any presumption in favor of the primary caregiver but intended to reject such presumptions. The decision of the trial court was based on the statutory factors and as such the Appeals court is reversed.

DISPOSITION: Affirmed.

State v. Vakilzaden, 251 Conn. 656, 742 A.2d 767 (Conn. 1999).

NATURE OF THE CASE: This family law case involved an appeal after a dismissal of charges in the context of custodial interference.

FACTS: Vakilzaden (D) was charged with one count of conspiracy to commit custodial interference and one count of custodial interference. The charges arose from a criminal complaint that Vakilzaden aided and abetted his nephew (H) in interfering with the custodial rights of the nephew’s wife (W) regarding their child Saba. Vakilzaden moved to dismiss the charges based on the fact that H was a joint custodian. The trial court granted the motion to dismiss based on the Marshak precedent, concluding that the state had not demonstrated that W was the sole custodian of the child at the time of the alleged interference. Under a prior court order, H had only limited supervised visitation based on his risk of flight and past abusive behavior. H later received help from Vakilzaden in distracting H’s wife so that H could take the child from a store mall while Vakilzaden spoke with W. Vakilzaden was charged and the charges were dismissed and this appeal resulted.

ISSUE: Can a joint custodian of a child be liable for child abduction?

RULE OF LAW: Yes. A joint custodian of a child can be liable for child abduction.

HOLDING AND DECISION: Marshak should be overruled. A joint custodian should not be immune from criminal prosecution based solely on his or her status as joint custodian if the state can prove all elements of the custodial interference statute including both knowledge and intent beyond a reasonable doubt. In Marshak, this court was wrong to conclude that a joint custodian could never be liable for custodial interference under any circumstances. When one parent purposefully deprives the other joint custodian of their joint lawful custody of the minor child, a de facto sole custody situation is effectively created. The state asserts that it will be able to prove that Vakilzaden was present during the family court hearings, he was often present during supervised visitation and he assisted H with the purchase of the plane tickets and facilitated the getaway from the mall the day H took the child.

DISPOSITION: Reversed and remanded.

Blondin v. Dubois, 189 F.3d 240 (2d Cir. 1999).

NATURE OF THE CASE: This family law case involved an international child custody dispute.

FACTS: H and W met in the summer of 1990 and began living together in France but never wed. A daughter was born in 1991 and a son in 1995. W testified that H physically abused her while the children were in her arms. She testified that H had twisted an electrical cord around her neck and threatened to kill her.

W left the home and went to live in a battered women’s shelter but later returned to H. The cycle repeated itself several times. Eventually W took the children from France to the United States. W concedes that she wrongfully removed the children from France and forged H’s signature to obtain passports for the children. W contends that she did this to protect the children from a physically abusive environment. H denies that he has abused the children.

H sought a court order in France to order the children’s return to France under the Hague Convention. The court held an immediate evidentiary hearing under the Hague Convention and it was determined that in fact H was abusive and hit the children. The older child testified that both parents beat her but that H did so more than W.

H’s Hague petition was denied on the grounds that the children would face a grave risk if returned to H’s custody and that H would be unable to support the children. H appealed. The French authorities were contacted and assured the U.S court that measures would be taken to assure the children’s safety if returned while a French court determined custody.

ISSUE: Must a court consider protective measures in the foreign country if it is determined that there is a grave risk to a child to be returned to that country under the Hague Convention?

RULE OF LAW: Yes. A court must consider protective measures in the foreign country if it is determined that there is a grave risk to a child to be returned to that country under the Hague Convention.

HOLDING AND DECISION: The Convention requires that any debate on the custody rights issue should take place before the competent authorities in the country of the child’s habitual residence prior to removal. It is therefore important that a court considering an exception under Article 13(b) take into account any ameliorative measures by the parents and authorities that can reduce whatever risk might otherwise be associated with a child’s repatriation.

We are required to trust the court of the home country to issue whatever orders may be necessary to safeguard the children who come before it. Granting H’s petition would not as a legal matter entail turning the children over to his custody. Other arrangements could be made pending the custody adjudication. On remand the district court must consider the protection that can be provided by the French authorities prior to a determination of custody in this matter. We do not disturb the finding that the return of the children to H would pose a grave harm to their safety.

DISPOSITION: Reversed in part and remanded for further consideration.

In re Marriage of Greenlaw and Smith, 123 Wn.2d 593, 869 P.2d 1024, cert. denied, 513 U.S. 935, 115 S.Ct. 333, 130 L.Ed.2d 617 (1994).

NATURE OF THE CASE: This family law case involved a dispute over the ability to modify a custody decree once a new home state is established.

FACTS: H and W were married in 1978 and their son Alex was born the same year. The marriage dissolved in 1982 when the Alex was 3 years old and W was granted custody. In 1985, when Alex was seven years old, W accepted a three year assignment with the United States Army in Germany.

W placed Alex in a German speaking boarding school during that time and the boy only saw his mother on occasional weekends and holidays. W and the boy relocated to California in 1988 and moved a total of four times between 1988 and 1990. Alex attended three different schools during that time. W enrolled in law school in San Jose in 1990. During that time Alex lived with her former boyfriend in Berkeley and only saw his mother on weekends and school vacations.

Alex saw a counselor while visiting his father in Tacoma who recommended that he live with the father after concluding that the mother had effectively abandoned Alex.

W denied allegations of abandonment and neglect. In 1991, H petitioned the Pierce County Court in Washington State to obtain custody. W responded by stating that California had jurisdiction. The court denied W’s motion, holding that Washington had significant contacts with the child and because an emergency existed. W appealed and the Court of Appeals reversed holding that Washington did not have subject matter jurisdiction and this appeal resulted.

ISSUE: Does a state have continuing jurisdiction to modify its own custody orders after a child and custodial parent have established residence in another state?

RULE OF LAW: A state has continuing jurisdiction to modify its own custody orders after a child and custodial parent have established residence in another state, provided the child has continuing contacts with the state that are more than slight, and one of the parents remains in the state.

HOLDING AND DECISION: The UCCJA has provisions that allow a decree state continuing jurisdiction to modify its own custody orders. Under the UCCJA all petitions for modification are to be addressed to the prior state if that state has sufficient minimum contacts with the case to satisfy the UCCJA requirements. Exclusive continuing jurisdiction is not affected by the child’s residence in another state for six months or more. Even though the new state becomes the child’s home, significant connection jurisdiction continues in the state of the prior decree when the court record and other evidence exists in the original state and when one parent continues to reside therein.

The PKPA requires that the state have jurisdiction to modify a custody decree under the state’s own laws. The court must clearly distinguish between jurisdiction to determine initial custody and jurisdiction to modify a prior custody order. Under the present case that distinction was not made. Both the trial court and the appeals court failed to consider the presumption created by the UCCJA and PKPA that the decree state had continuing jurisdiction to modify its own order and other states must decline to do so until the decree state loses or declines jurisdiction.

Exclusive jurisdiction is maintained if one of the parents continues to reside in that state and the child has some connection with the decree state. Under these facts the father still resides in the state and the child visits him there. The local court also has all the files on this case regarding the history of the litigation, and the child has extended family from both the mother and the father in the state. The child is also mature enough to express his own opinion regarding with whom he wishes to live and he wants to live with his father. The denial of California jurisdiction was not an abuse of discretion based on the fact that California is the more convenient forum.

DISPOSITION: Reversed.

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Glanzner v. State, Dep’t of Social Services, 835 S.W.2d 386 (Mo. 1992).

NATURE OF THE CASE: This family law case involved a dispute over conflicting child custody decrees.

FACTS: H and W were married and had one son. H was in the military and the couple were separated and moved frequently. In 1985, the family relocated to Missouri and resided there for 9 months until W and the child returned to California. In December W filed for legal separation and custody in California. H filed a motion to quash service and filed a petition for dissolution in Missouri. The motion to quash in California was conducted and included a phone consultation with the judge in Missouri.

The California court found that the child had resided in the state for the six months prior to the filing of the Missouri petition and found that California had the most significant contacts regarding the child. The court held that under the UCCJA California was the proper jurisdiction. Custody was granted to W and H was ordered to pay $253 per month in child support as well as $151 per month in spousal support. The marriage was dissolved in November 1986 and H was ordered to pay child and spousal support and maintenance.

W then filed a special appearance to the Missouri action. That objection was overruled by the Missouri court and a default decree was entered giving H custody and reasonable visitation to W. For the next six years nothing happened although H claimed that W had interfered with visitation rights. Eventually the paternal grandparents got W to allow the child to visit Missouri but then refused to allow him to return. W filed for habeas corpus and was allowed to take the child after posting a bond. H defended the habeas action with his Missouri custody determination and that the California orders were contrary to UCCJA.

ISSUE: Under the UCCJA and PKPA does a home state take precedence for resolution of jurisdictional matters and priority of court orders?

RULE OF LAW: Yes. Under the UCCJA and PKPA a home state takes precedence for resolution of jurisdictional matters and priority of court orders.

HOLDING AND DECISION: The question becomes which decree is entitled to enforcement. H contends that he had home state advantage because the children resided in Missouri the six months prior to the initiation of actions by W in California and W had only lived in California for 51 days prior to the suit being filed. As the child was absent from the state for only 74 days when H filed his Missouri action, Missouri had been the child’s home state within six months before commencement of the proceeding. W was served with summons and petition on July 17, 1986 in the Missouri action and she did not object to that service.

Under these facts the PKPA is immaterial to the child custody question because Missouri was the child’s home state under both California and Missouri versions of the UCCJA and under their versions of the PKPA. Under the PKPA any decree made consistently with the provisions of the PKPA shall be enforced by the court of another State. Under Section 1738A(c) the court must first have jurisdiction under the laws of the state and one of the conditions enumerated in 1738A(c)(2) must be met. California was not the home state. Further analysis shows that the California decree is not enforceable as it appears that another state would have jurisdiction under the home state provisions. There is no further evidence that the child has been abandoned or subjected to threatened mistreatment or abuse. Further Missouri had jurisdiction and did not decline to exercise it. Also, California did not enter a decree consistent with the requirements of the PKPA. California is required to give full faith and credit to the Missouri decree as it was made consistent with the PKPA. The PKPA preempts conflicting state law in interstate custody matters. Congress enacted the PKPA to avoid jurisdictional competition and to facilitate enforcement of sister decrees in other states. Missouri was the only state that could enter a decree consistent with the PKPA unless it declined to exercise jurisdiction.

DISPOSITION: W’s petition for a writ of habeas corpus denied.

May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953).

NATURE OF THE CASE: This family law case involved a dispute over a custody award without personal jurisdiction.

FACTS: H and W were married in Wisconsin and remained domiciled there until 1947. The couple experienced marital difficulties and H told W to take the children to Ohio temporarily. After a few weeks W decided not to return and H filed suit in Wisconsin seeking divorce and custody. Service of process consisted of delivery of a copy of the summons and petition. W entered no appearance and the court granted the divorce decree and awarded custody of the children to H.

The children remained with H for four years until the children visited W and W refused to allow them to return to H. H then filed a petition for a writ of habeas corpus in Ohio alleging that W was illegally restraining the liberty of their three children by refusing to delivery them to him in response to a custody decree issued by a Wisconsin court. The probate court decided that it was obliged under Full Faith and Credit to accept the Wisconsin decree as binding upon W. Eventually the decree was dismissed by the Ohio Supreme Court. The United States Supreme Court granted cert.

ISSUE: Must the court of a first state give full faith and credit to a decree from a second state awarding child custody to a parent, when that decree was obtained by the parent in an ex parte divorce action in the second state, and where the court had no personal jurisdiction over the other parent?

RULE OF LAW: No. The court of a first state need not give full faith and credit to a decree from a second state awarding child custody to a parent, when that decree was obtained by the parent in an ex parte divorce action in the second state, and where the court had no personal jurisdiction over the other parent.

HOLDING AND DECISION (Burton): A mother’s right to custody of her children is a personal right entitled to as much protection as her right to alimony. The order by the Wisconsin court awarding custody of the children to H is not enforceable against W in Ohio because the Wisconsin court had no personal jurisdiction over W.

DISPOSITION: Reversed and remanded.

Concurring (Frankfurter): Property, personal claims, and even marital status generally give rise to interests different from those relevant to the discharge of a State’s continuing responsibility to the children within the state’s borders. The law should reflect the special place children have in our society.

Dissenting (Jackson): A conclusion that a state must not recognize a judgment of a sister state involves very different considerations than a conclusion that it must do so. The United States Constitution requires that Ohio recognize a valid judgment and give it full faith and credit. The only escape from this command is that the judgment rendered in Wisconsin is void. However, it is void only if it violates due process of law.

Determination that the children were domiciled in Wisconsin was adjudicated and not disputed in Ohio. The children remained in Wisconsin for the next four years. The only thing that was disputed was that the court in Wisconsin had no jurisdiction over W. If ever domicile of the children and that of one spouse is sufficient to support a custody decree and make it binding on all interested parties, this should be the case. This decision means that a state in which a child and one parent are domiciled cannot constitutionally adjudicate controversies as to guardianship.

Moss v. Riverside City Superior Court, 17 Cal.4th 396, 950 P.2d 59 (Cal. 1998).

NATURE OF THE CASE: This case involved a contempt issue in the context of a failure to pay child support.

FACTS: A judgment of dissolution ordered H to pay $438 per month (later modified to $385 per month) to support his two children. H was unemployed at the time and the order was based on his ability to earn $1670 per month in gross income.

H failed to make payments from July 1994 through June 1995. A total of $5,210 was due and unpaid. Contempt was issued and H was served and directed to appear and show why he was not guilty of contempt. H answered that he was unemployed and when asked if he was getting a job his reply was that he was trying. W’s lawyer argued that H had the burden of proof to show that H did not have the ability to comply. The court ruled for W and found that H was capable of work and found H guilty of contempt. The only factual finding was that H had the ability to work. H appealed and the Court of Appeals ruled for H on the grounds that forcing him to work would be involuntary servitude. This appeal resulted.

ISSUE: May a parent whose inability to pay court ordered child support due to a willful failure to seek and obtain employment be adjudged in contempt of court and punished?

RULE OF LAW: Yes. A parent whose inability to pay court ordered child support due to a willful failure to seek and obtain employment may be adjudged in contempt of court and punished.

HOLDING AND DECISION: A court order requiring that a parent support a child may require that the parent seek employment. This is not a form of peonage as the parent is not under any obligation to any single employer. The parent is free to elect the type and form of employment. The Thirteenth Amendment does not prohibit enforced labor as punishment for a crime and does not prevent government entities from compelling the performance of civic duties such as jury service, military service, or road work. A parent’s duty to support a child is a social obligation no less than compulsory military service, road building and jury service.

Undertaking employment because an income is necessary to enable a parent to comply with a valid court order to support a child is not an imposition of governmental control over the type of employment or the employer. Further, the prohibition of imprisonment for debt does not support an application of the Todd holding to child support obligations. Family support obligations are not ordinary debts subject to the constitutional prohibition of imprisonment for debt. Even if such an obligation were considered a debt, children are dependent on their parents for the necessities of life and it is essential to the public welfare that parents provide support to care for their needs. A parent who can work and knows that support is due but willfully refuses to work acts against fundamental societal norms and intentionally prejudices the rights of his children.

A contempt sanction or criminal penalty may be imposed for violation of a support order that is based on earning capacity when inability to comply with the order is caused in whole or in part by the parent’s willful failure to work. As for burden of proof; inability to comply with an order is an affirmative defense, which must be proven by a preponderance of the evidence by the alleged contemnor. However, under these facts, due process concerns must take precedence. We disapprove of Todd and under our partial disapproval of the Feiock rule, H has the burden of proof. However, neither rule can be retroactively applied to H because he had no notice of their applications while at trial. Due process precludes retroactive application under either rule. An unforeseeable and retroactive judicial expansion of the law cannot be imposed. H could have reasonably relied on Todd in his belief that he cannot be compelled to find work. H could have also relied on Feiock where he was only required to offer sufficient evidence to raise the issue of the inability to pay.

DISPOSITION: Affirmed.

In re Marriage of Comer, 14 Cal. 4th 504, 59 Cal. Rptr. 2d 155 (1996).

NATURE OF THE CASE: This family law case involved a dispute over concealment in the context of child support.

FACTS: H and W were married in 1980 and lived in Florida until 1985 when financial difficulties forced them to relocate to Arizona. W and the children moved to Arizona while H remained in Florida to complete business. H planned to join the family later but instead was served with notice that W had obtained dissolution of their marriage by default judgment in March 1985 in Gila County, Arizona. W was awarded custody of the children subject to reasonable visitation by H. H was also ordered to pay child support of $350 per month per child.

W did not provide H with her new address and instructed her family not to disclose her whereabouts. H failed to make support payments from March 1985 until September 1992. A small amount of money was paid in September and October of 1992. During this 7.5 year period W received AFDC payments and assigned her rights to support payments to AFDC. Eventually W sued for back support and H answered with the affirmative defenses that W had deliberately concealed the whereabouts of the children along with fraud, estoppel, waiver, laches, and the statute of limitations.

During the 7.5 year time, H had sporadic contact with the children by telephone and the mother stopped all direct visitation. There is strong evidence that W was using the children for revenge. H testified regarding his financial straits and the court eventually ordered him to pay a total of $371 in monthly child support for both children. Arrearages of $4,952 were ordered to be paid down at the rate of $50 per month. The court found that no support arrearages were due from March 1985 until September 1992 because W concealed the whereabouts of the children. This appeal resulted.

ISSUE: Is concealment a defense if the children are still of a minor age and in need of the assistance?

RULE OF LAW: No. Concealment is not a defense if the children are still of a minor age and in need of the assistance.

HOLDING AND DECISION: Estoppel is an equitable defense, and like in all equitable defenses justice must be balanced and all the circumstances weighed. The single most important consideration in an action for support is the best interests of the child. The denial of a parent’s rights to custody and visitation does not affect that parent’s obligation to provide child support. As such the defense of concealment is not available when the concealment ends and the child is still a minor.

H contends that had he known where to send the payments he could have provided the funds. We reject this contention. As for the rights of AFDC to recover the monies in arrearages, it has the same rights to collect as the individual obligee and therefore concealment does not estopp it from seeking reimbursement.

DISPOSITION: Reversed and remanded.

Welsher v. Rager, 127 N.C. App. 521, 491 S.E.2d 661 (N.C. 1997).

NATURE OF THE CASE: This family law case involved a dispute over support past the age of 18 and graduation from high school.

FACTS: W and H were divorced in 1980 and in 1985 W petitioned for a court order to recognize an agreement for support executed by W and H in 1985. The court order provided that H was to be legally responsible for support of their two sons and ordered that he pay $45 per week. H later refused to continue to make payments. At the time of refusal, the boys were 21 and 18 with the latter just having graduated from high school.

W filed the present action for arrearages. H responded by filing an Answer for Civil Suit stating that the original decree only obligated him to support the children until they were eighteen and out of high school, that he did not knowing agree to support then until 21. H’s motion to dismiss was granted. This appeal resulted.

ISSUE: Must a court enforcing a child support order generally apply the law of the state in which the order was issued?

RULE OF LAW: Yes. A court enforcing a child support order generally must apply the law of the state in which the order was issued.

HOLDING AND DECISION: The trial judge made his decision under the Uniform Reciprocal Enforcement of Support Act (URESA) and not under the Uniform Interstate Family Support Act (UIFSA) standard. The only finding by the trial judge was that the children had reached 18. Under URESA that would have been sufficient to allow the judge not to support the order. However, under UIFSA, the court must determine enforceability by the state of origin unless an appropriate defense was raised under UIFSA guidelines. Under New York law, the age of emancipation is 21 and that must be applied in enforcing this order. The record is also devoid of any appropriate defenses raised under the UIFSA guidelines and there is no evidence that both parties consented to modification or that the issuing state lost jurisdiction because none of the parties live there any longer. As such, no court of this jurisdiction may vacate or modify this order. If H wishes to have this order modified, he must go to New York to do so. For the record, we must also hold that UFISA applies to any foreign order registered in this state after January 1, 1996. As the New York order does not supply a per child break down of the actual sums due even though one child reached majority at 21, the other child is still eligible for support. As such, the amount owed stands.

DISPOSITION: Reversed and remanded.

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