Justia Family Law Opinion Summaries

A parent who has committed domestic violence may rebut the presumption favoring only supervised visitation with a sufficient accumulation of direct and indirect evidence of a lack of physical or emotional danger to the child. Keanna Schneider originally appealed a district court order denying her motion to modify the parenting time of Keaton O'Hara from unsupervised to supervised parenting time. The North Dakota Supreme Court previously held the trial court erred by improperly excluding evidence, making insufficient findings, and misapplying the law in analyzing the parties' conduct. We remanded for further proceedings and retained jurisdiction under N.D.R.App.P. 35(a)(3). On remand, the district court issued additional findings and an amended order. The Supreme Court affirmed, concluding that the district court complied with the Supreme Court's mandate by holding an evidentiary hearing and that its additional findings were not clearly erroneous. View "O'Hara v. Schneider" on Justia Law

In domestic relations cases, the requirements of N.D.R.Ct. 8.2 must be complied with before a party's request for affirmative relief may be granted in an ex parte interim order. Attorney's fees may be awarded as a remedial sanction for contempt. Aeryn Peterson appealed an order to show cause and an order finding her in contempt. She argued the district court abused its discretion by finding her in contempt and ordering her to pay Cody Schulz's attorneys fees. Peterson and Schulz had one child together. Peterson was awarded primary residential responsibility and Schultz was awarded parenting time. Peterson moved to relocate with the child out of state. Peterson requested the court allow her to move with the child to New Mexico so she could pursue a degree in theater. Schulz moved for an order to show cause, arguing Peterson violated the judgment by moving the child out of state without his consent or a court order. Schulz also requested the court order Peterson to return the child to North Dakota "immediately and no later than August 15, 2016," and award him full costs and attorneys fees for having to bring the motion. Schulz filed a supporting affidavit claiming he served Peterson with a letter on August 4, 2016, informing her he did not consent to the move, he learned Peterson and the child were in New Mexico on August 8, 2016, and Peterson refused to return the child to North Dakota. The district court granted Schulz's motion and entered an order to show cause. The court further ordered Peterson to return the child to North Dakota. Peterson responded to the motion for an order to show cause, arguing she was entitled to respond to the motion before the court could find she was in contempt or order her to act in any specific capacity. She claimed the court's order that she return the child to the state was improper because she did not have an opportunity to respond to the motion and a hearing had not been held. After a hearing the district court entered an order finding Peterson in contempt. The court found Peterson violated the judgment and was in contempt for moving the child to New Mexico without receiving Schulz's consent. Finding no reversible error, the North Dakota Supreme Court affirmed the district court's order. View "Peterson v. Schulz" on Justia Law

This case was previously before the Idaho Supreme Court in In Matter of Doe (2016-14), 389 P.3d 141 (2016). There, the Court vacated the judgment terminating Jane Doe’s parental rights to her son M.R. and remanded the case for further findings of fact and conclusions of law. On remand, the magistrate court again terminated Doe’s parental rights. The magistrate court found that M.R. was neglected as defined by Idaho Code sections 16-2002(3)(a) and 16-2002(3)(b) and that Doe’s compliance with her case plan was not impossible. Doe timely appealed. Finding no reversible error, the Supreme Court affirmed. View "H & W v. Jane Doe (2017-3)" on Justia Law

The fathers of minor children in New Jersey challenged the state law governing child custody proceedings between New Jersey parents. In a suit against state court judges, under 42 U.S.C. 1983, they argued that the “best interests of the child” standard that New Jersey courts use to determine custody in a dispute between two fit parents is unconstitutional. The fathers alleged that their parental rights were restricted, or that they were permanently or temporarily separated from their children, by order of the New Jersey family courts without adequate notice, the right to counsel, or a plenary hearing, i.e. without an opportunity to present evidence or cross-examine and that although mothers and fathers are, in theory, treated equally in custody disputes under New Jersey law, in practice courts favor mothers. The Third Circuit affirmed dismissal of the suit, after holding that the Rooker-Feldman doctrine did not bar the suit, which was not challenging the state court judgments, but the underlying policy that governed those judgments. The court concluded that the judicial defendants were not proper defendants, having acted in an adjudicatory capacity and not in an enforcement capacity. View "Allen v. DeBello" on Justia Law

The State filed a petition to terminate Mother's parental rights pursuant to 10A O.S.Supp.2014, section 1-4-904(B)(5), alleging Mother failed to correct the conditions that led to the deprived child adjudication of B.K. B.K. was removed from the home as the result of a delusional episode in which Mother believed the police had planted listening devices in B.K.'s ears to spy on Mother. This delusional episode was reported to police by B.K.'s seventeen-year-old brother. Both a psychologist and a psychiatrist diagnosed Mother as having a delusional persecution disorder that medication would help control. When Mother said she would not take medication for the delusional disorder, the State pursued termination of Mother's parental rights because B.K. had been in DHS foster care for over 36 months. A jury returned a verdict that found Mother failed to correct the conditions. The trial court entered judgment on the verdict and terminated Mother's parental rights. Mother appealed. Upon review, a majority of the Court of Civil Appeals reversed the judgment, finding undisputed evidence revealed Mother's mental disorder was the cause of B.K. being adjudicated deprived, not deficiencies in parenting. The majority opinion held that any termination must be based on the mental health ground found in 10A O.S.Supp.2014 sec. 1-4-904(B)(13) and, therefore, it was fundamental error to terminate pursuant to 10A O.S.Supp. 2014 sec. 1-4-904(B)(5). The State sought review from the Oklahoma Supreme Court to address whether the Legislature intended 10A O.S.2011, section 1-4-904(B)(13) to be the exclusive ground for termination in cases where a parent has a "diagnosed cognitive disorder" or can such a disorder be a "condition" leading to a deprived adjudication that a parent must correct under 10A O.S.2011, section 1-4-904(B)(5). The Supreme Court vacated the majority opinion of the Court of Civil Appeals, and held: (1) subsection 1-4-904(B)(13) did not exclusively apply, and (2) the trial court did not err in terminating Mother's parental rights based on subsection 1-4-904(B)(5). View "In the Matter of B.K." on Justia Law

In a post-divorce contempt action, the Georgia Supreme Court granted Appellant’s application for discretionary appeal to review the trial court’s order finding Appellant in contempt of three separate provisions of the parties’ divorce decree. “To be sure, this Agreement could have been more clearly drafted [. . .] the complete text of the Agreement demonstrates that the parties intended for Husband to assume all tax liabilities of the businesses. We therefore conclude that the trial court’s construction of ‘corporate income tax liability’ constituted a reasonable clarification of that term rather than an improper modification of the Agreement.” The Court affirmed the trial court’s findings as to two of provisions and reverse as to the third. View "Sutherlin v. Sutherlin" on Justia Law

At issue in this case was the modification of a default judgment requiring that the parents of a child rotate custody of their three-year-old child every three weeks. The father lived in Blackfoot; the mother lived out of state in Oceanside, California (913 miles away). The Idaho Supreme Court held that the magistrate court abused its discretion in ordering that custody rotation. In addition, the mother had moved to modify the judgment by default, but did not move to set aside the entry of default. The Supreme Court held that the father waived the default by litigating the motion to modify. View "Martinez v. Carrasco" on Justia Law

Family Code section 271 does not authorize the court to award sanctions to non-parties, but rather is intended to promote settlement of family law litigation through shifting fees between the parties to the litigation. In this case, the Court of Appeal agreed that the trial court was without authority to award sanctions to respondents because they were not parties to this action. The court reasoned that sanctions may not be awarded under section 271 to a party's attorney when it was that attorney who was requesting the sanctions for the sole benefit of the attorney. Accordingly, the court reversed the order for sanctions. View "Webb v. Webb" on Justia Law

About four months before his 20th birthday, defendant-appellant Jesse S. filed, in propria persona, a request under section 388.1 of the Welfare and Institutions Code to return to juvenile court jurisdiction and the foster care system, because the couple who adopted him the day before his 18th birthday was no longer supporting him, even though they were receiving payments on his behalf from California’s Adoption Assistance Program (AAP). The judge denied the request, noting that under the literal language of section 388.1 the very fact the couple were still receiving AAP payments on Jesse’s behalf precluded Jesse from reentry into the juvenile dependency system. The Court of Appeal "reluctantly" affirmed: the trial judge understood the plain language of the statue and concluded there was no question Jesse’s adoptive parents were still collecting adoption assistance program payments on Jesse’s behalf, the judge was forced to conclude Jesse was not eligible for reentry under the statute. View "In re Jesse S." on Justia Law

Mark Rath appealed orders denying his demands for a change of judge, an order denying his motion for an order to show cause, and an order modifying his child support obligation. The North Dakota Supreme Court affirmed, concluding Rath did not meet the statutory requirements for a change of judge, the district court did not abuse its discretion by denying the motion for an order to show cause, and the court did not err in modifying the child support obligation. View "Rath v. Rath" on Justia Law