NATURE OF THE CASE: This family law case involved an appeal from a judgment of divorce nisi.

FACTS: Jeffrey Kendall (H) was Jewish and Barbara Kendall (W) was Catholic. They married in 1988 and had three children and agreed that their children would be brought up in the Jewish faith. In 1991 W joined a fundamentalist Christian church that taught that anyone who did not accept its views would be damned to hell. H adopted Orthodox Judaism in 1994.

W filed for divorce based on an irretrievable breakdown of the marriage. A guardian ad litem was appointed to assess the religious conflicts between H and W and their effect upon the children. The resulting divorce decree contained restrictions upon religious exposure ordering that neither parent could use their religious beliefs to alienate the children from the other parent. W was granted custody and H appealed the terms of the divorce order.

ISSUE: What must a court find in order to restrict religious indoctrination by parents of different persuasions?

RULE OF LAW: There must be a finding of substantial harm to a child by clear and convincing evidence before a court may restrict religious indoctrination by parents of different persuasions.

HOLDING AND DECISION: Under these facts the report by the Guardian ad litem more than justified the court’s finding of substantial harm and supports the order that the court issued regarding the religious indoctrination of the children. A court need not wait for a formal psychiatric breakdown of a child to determine that the burden of proof in a finding of substantial harm has been met.

The burden of proof has been met if the evidence paints a strong picture of the reasonably projected course if the children continue to be caught in the cross fire of their parents’ religious differences. The guardian ad litem’s report clearly demonstrates the course that H and W had put their children on. We reject the claim that this decree burdens H’s right to practice religion under the free exercise clause. There was clearly substantial demonstrable evidence of the development of serious conflicts for these children.

DISPOSITION: Affirmed.

NATURE OF THE CASE: This family law case involved an appeal to determine if a child custody decree based on the race of the parents was valid under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

FACTS: Sidoti (plaintiff, respondent) sued to regain custody of his three year old daughter after Palmore (defendant, petitioner) was awarded custody incident to divorce. The father sought revocation of the custody decree because Palmore’s second husband was black whereas she and the child were Caucasian. The trial court found the child’s welfare and physical environment in the biracial home to be adequate and the mother’s parenting qualifications to be sufficient. However, Sidoti alleged that the social stigma of being reared in a biracial home would prevent the child from excelling in society because of racism. The trial court held in favor of Sidoti, the ruling was affirmed on appeal, and the U.S. Supreme Court granted cert.

ISSUE: Can the best interest of the child standard in resolving child custody disputes include race as a factor without violating the due process prohibition against racial classifications in government regulation?

RULE OF LAW: No. The best interest of the child standard in resolving child custody disputes cannot include race as a factor without violating the due process prohibition against racial classifications in government regulation.

HOLDING AND DECISION (Burger): The Court will always strike down a state activity under the Fourteenth Amendment Due Process Clause if it infringes the rights of racial group recognized as a constitutional suspect class by the Fifth Amendment unless the state can show that the statute is rationally related to a legitimate end of government. When the state classification is based on race, the state legislation is not entitled to the usual rebuttable presumption of validity.

A parent’s right should not be undercut by racial prejudice. A State’s interests in protecting the welfare of a child do not include the right to manufacture custody arrangements based on race. Race does not evidence the parenting qualifications of either parent.

DISPOSITION: Reversed.

NATURE OF THE CASE: This family law case involved a dispute over a modification of custody from sole to joint custody.

FACTS: W and H divorced in 1992 and stipulated to W’s sole custody of their five minor children, aged between 4 and 14. The parties lived in Fort Collins, Colorado all their children’s lives and the separation agreement stated that it was in the children’s best interests to have continued interaction in Fort Collins. The parties made this statement knowing that W presently intended to go to school outside the area. In 1993, W was accepted into a two year program at a physician’s assistant school in Long Island, New York. When H learned of W’s plan to move to New York he filed a petition for modification of custody for joint or sole custody and a motion to prohibit W from taking the children when her. The court agreed with H and modified its order such that H would obtain sole custody if W left the state. W appealed, the court of appeals affirmed, and this appeal resulted.

ISSUES: 1) Must a change in residential custody be determined under the endangerment standard or the best interests standard? 2) Is there a presumption that a custodial parent’s choice to move children should generally be allowed?

RULE OF LAW: 1) A change in residential custody must be determined under the endangerment standard. 2) Yes. There is a presumption that a custodial parent’s choice to move children should generally be allowed.

HOLDING AND DECISION: Because of the importance of a child’s continuing stability in his or her relationship with the residential custodian, consideration of the endangerment standard should be taken into account for any removal decision. A removal dispute involves potential modification of custody and in order to honor the legislative determination favoring the residential custodian of children the trial court must analyze a removal petition in light of the endangerment standard. We find that the child’s best interests are served by preserving the custodial relationship.

This leads logically to a rebuttable presumption that the custodial parent’s choice to move with the children should generally be allowed. In this situation the custodial parent must present a prima facie case showing there is a sensible reason for the move. If that is shown, the burden then shifts to the non-custodial parent to show that the move is not in the best interests of the child. This showing by the non-custodial parent can consist of showing that the custodial parent has consented to a modification of custody, the child has been integrated into the noncustodial parent’s household with the custodial parent’s consent, or that the child would be endangered by the move.

The endangerment is peculiar to each individual child. If no credible evidence of endangerment is shown then the noncustodial parent can overcome the presumption by a preponderance of the evidence that the negative impact of the move outweighs the advantages of remaining with the primary care giver. Under these facts, the trial court made no finding of specific physical or emotional harm that would result from the move to New York. The court gave no weight to the custodial parent’s relationship with the children and merely focused on the geographical advantages to the children to remain in Fort Collins.

DISPOSITION: Reversed and remanded.

NATURE OF THE CASE: This family law case involved an appeal from a determination of sole custody in the context of a divorce.

FACTS: H and W were married and had one son in 1994. Two years later H told W that he wanted a divorce and moved in with a coworker and her children. W and their child remained in the marital home.

Both parties worked full time. Prior to the separation both parents shared in the upbringing of their son. Soon after H moved out W began to impede H’s contact with their child forcing H to file numerous petitions to establish a temporary visitation schedule. W then filed petitions claiming that H had sexually abused the child which further disrupted H’s contact with the child. None of the abuse allegations were substantiated and all of W’s petitions were ultimately dismissed. The court chastised W in strong language and found that W’s influence over the boy had in fact greatly impacted the boy’s relationship with his father. However, in spite of W’s conduct the court still awarded her custody of the child because W had sought counseling to overcome her emotional problems and to repair the damage suffered by her son. H appealed the court’s decision as a patent abuse of discretion.

ISSUE: May a court award custody of a child to a parent if it is shown that that parent will attempt to destroy the child’s relationship with the noncustodial parent?

RULE OF LAW: Yes. A court may award custody of a child to a parent if it is shown that that parent will attempt to destroy the child’s relationship with the noncustodial parent.

HOLDING AND DECISION: The most important consideration in any custody decision is the best interests of the child. When evidence shows continual and unmitigated conduct by the primary caregiver designed to poison a child’s relationship with the other parent, a change of custody from the offending parent may well be in the child’s long term best interests. Under these facts, as far as the child abuse petitions were concerned, the evidence shows that W did not act precipitously in filing the petitions and she sought expert guidance and assurance that what she was doing was correct. The record has evidence that W was not alienating the child from the father or that her concerns were wholly unreasonable. The trial court also found that W’s distress was transient in nature. The court also awarded the father fairly liberal visitation.

DISPOSITION: Affirmed.

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.

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.