Archive | Parental Rights

Not until the parent becomes unable to care for the children, holds the New Jersey Superior Court in A.W. v. T.D. (N.J. Super. Ct. Ch. Div. Nov. 19, 2013). (Note that this relates to a change in custody, and does not necessarily govern an initial custody decision.) [UPDATE: I now include a link to the opinion, thanks to a commenter who passed it along.]

This case presents a serious issue of first impression regarding the impact a terminal cancer diagnosis may have on an existing custody arrangement. Plaintiff-father, who is the non-custodial parent, seeks an order granting emergency transfer of residential custody of the parties’ three minor children [ages twelve to fourteen] from defendant-mother, on the grounds that she now has incurable stage IV breast cancer requiring various medical interventions….

[Mother] … acknowledges … that, at some point in the future, her condition may deteriorate to the point where she can no longer physically care for the children. She further notes that under the circumstances, a transfer of custody to [father] may ultimately be inevitable and necessary. However, [mother] also contends that such a transfer of custody is premature at this time, and that at least presently, she is still able to care for the children. She stresses that her multiple family members who live nearby can all help provide her with physical, financial, and emotional assistance as necessary.

[Mother]’s two treating physicians, Dr. Paul Fowler and Dr. Charles Padgett, both confirm that [mother]’s cancer is, in fact, incurable and terminal. However, each doctor further opines that [mother] is presently stable and fully functional. They advise that while [mother] takes prescribed medication for her condition, her judgment is unimpaired. Most significantly, each physician concludes that that [mother] is able to continue caring for the children at this time….

It

From In re D.R. (Wash. Ct. App. Oct. 15, 2013) (nonprecedential) (some paragraph breaks added, some removed):

B.R. gave birth to a son, D.R., on December 10, 2006. Just before D.R.’s second birthday, Department of Social and Health Services (DSHS) removed him from B.R.’s care and initiated a dependency proceeding after a neighbor reported seeing the child’s uncle dangle him by the leg over a second story balcony. [Footnote: The uncle is the brother of Ms. B.R.’s eldest child’s father, and not actually related by blood or marriage to Ms. B.R. or D.R.]

The incident happened while B.R. was in the kitchen cooking and asked the uncle to hold D.R. so he would stop crying. When B.R. saw the uncle holding her son over the balcony, she ran over, grabbed D.R., and severely scolded the uncle.

Despite the uncle’s egregious conduct, and despite an agreement with DSHS to remove the uncle, B.R. did not ask him to move out. The uncle did move out for a time, but B.R. let him return not long after he moved out. B.R. explained that she did not force the uncle out because she did not believe that he posed an ongoing risk to D.R…. The situation resolved itself during the dependency when the uncle moved out and B.R. cut off all contact with him.

B.R. was required, as a condition of getting her child back, that she complete various evaluations, classes, and counseling sessions, all of which she completed successfully….

Despite this success, the trial court found that B.R. still remained unfit because:

The mother is currently unfit to parent this child because she continues to minimize the dangerous behavior of the uncle that was the reason that brought the child into foster care.

Even though the mother has complied with all services

So holds the California Court of Appeal in Gonzalez v. Santa Clara County Dep’t of Social Servs. (Cal. Ct. App. Oct. 8, 2013). The court does not holds that such behavior can never be child abuse, but it concludes that the Department of Social Services and the court below didn’t sufficiently consider the possibility that such behavior was permissible in this case. The key excerpt (some paragraph breaks added):

[A] successful assertion of the parental disciplinary privilege requires three elements: (1) a genuine disciplinary motive; (2) a reasonable occasion for discipline; and (3) a disciplinary measure reasonable in kind and degree.

Here there is no room for serious debate about the first and second elements. The social worker characterized Mother’s actions as born out of “frustrat[ion],” apparently meaning to imply that she was acting irrationally, in desperation. Nothing in the record supports such a view, or otherwise supports a rejection of the parents’ and Daughter’s consistent reports that the spanking was entirely the product of a genuine and deliberate disciplinary purpose, i.e., to arrest troubling behavior patterns exhibited by Daughter. There was no evidence of any other reason for Mother’s actions. The social worker failed to uncover evidence of any more general tendency toward violence in the home. There was no hint of eagerness or self-gratification in the parents’ resort to spanking. On the contrary, Mother testified without contradiction that she acted with great reluctance and regret.

Nor does the record suggest any reason to doubt that the circumstances furnished a reasonable occasion for discipline. All family members reported that Daughter’s conduct gave great cause for concern over the months preceding the spanking. Academically her grades were declining, she was failing to complete her homework, she was failing to arrive in class on time, and she was making false

From State v. Broten (Minn. Ct. App. Sept. 3, 2013) (some paragraph breaks added), which upholds the conviction:

In May 2012, officers from the Fridley Police Department were dispatched to a townhome in Fridley to investigate a report of a girl with a shaved head being forced to run outside wearing a diaper. An individual had called 911 to report that S.C.C., who was twelve years old, had been outside for over 30 minutes wearing only a diaper and a tank top. The individual also reported that S.C.C. was being disciplined for receiving an “F” on her report card and that her parents had shaved her head as part of the punishment.

When officers arrived at the townhome, approximately 30 to 50 people, including several adult men and teenage boys, had gathered to watch S.C.C. S.C.C.’s head had been shaved recently, and she was crying hysterically.

S.C.C.’s mother, appellant Stephanie Ann Broten, told officers that she did not understand what the problem was and that she was simply disciplining her child by embarrassing her. Appellant’s husband stated that S.C.C. had been warned several times that she would be forced to shave her head and wear a diaper if she did not start listening in school and getting better grades.

S.C.C. explained that appellant had shaved her head and that appellant’s husband had forced her to put on the diaper. S.C.C. also stated that she had been forced to go outside and run to the basketball court and back; that she had done that five times before the officers arrived; that one of her classmates from school had seen her and was calling her name while she was running; and that she told her classmate to leave her alone….

“A parent, legal guardian, or caretaker who, by an intentional act or

An interesting opinion today from the New Jersey Supreme Court, Emma v. Evans (N.J. Aug. 12, 2013). In Gubernat v. Deremer, 140 N.J. 120 (1995), a case involving a dispute over a name chosen by the mother at birth (when the parents weren’t living together), the court concluded that,

[I]n contested cases the surname selected by the custodial parent –- the parent primarily charged with making custodial decisions in the child’s best interest –- shall be presumed to be consistent with that child’s best interests, a presumption rebuttable by evidence that a different surname would better serve those interests.”

But in Emma, the court concluded that this presumption in favor of the custodial parent (in this context, referring to the parent with whom the child lives most of the time) should not apply to renaming decisions:

When parents have agreed on a name at birth, the parent seeking the name change in a subsequent dispute must bear the burden of showing by a preponderance of the evidence that the name change is in the child’s best interest.

Seems right to me. [...]

An interesting Appellate Court of Illinois decision, Cole v. Johnson (Ill. App. Ct. July 23, 2013) (some paragraph breaks rearranged); see, in particular, the last three paragraphs:

The petitioner is Cody Cole, and the respondent is Kathryn Anne Johnson. They live in Paris, Illinois, and have a two-year-old son, L.C. They were engaged to be married, but they broke off the engagement and ended their relationship, and now they live apart. Neither earns enough to support a household.

[Mother], who has custody of L.C., met an oilfield engineer from Albany, Texas, Steven Sutton, who is about her age and earns $130,000 a year. He can earn this kind of money only in the oilfields of Texas. As of the date of trial, he and [mother] were engaged to be married ….

Pursuant to section 609 of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/609 (West 2010)), [mother] filed a petition to remove L.C. from Illinois to Texas, so that she and L.C. could live with her soon-to-be husband, in Albany. After hearing evidence, the trial court denied the petition, finding that the proposed removal would not be in L.C.’s best interest. [Mother] appeals.

The best-interest finding is against the manifest weight of the evidence, considering the extent to which the proposed removal would improve the quality of life for both [mother] and L.C. Therefore, we reverse the trial court’s judgment and remand this case with directions to (1) grant the petition for removal and (2) craft a reasonable and realistic visitation schedule based on L.C.’s residence in Texas….

[Father], who is 23 years old, lives with his mother, stepfather, brother, and sister in a house in Paris, Illinois….

[Father] has a high-school diploma and one year of community college. He would like to attend a