Custody Newsletter # 15

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WELCOME

Welcome to the Custody Newsletter. Our tone is informal; we WANT contributions based on your clinical experiences, as well as more formal presentations.

Second, we solicit input from members of all professions. This is why it is not mandatory that any specific Reference format be followed, e.g., the bibliographic notation system of the American Psychological Association, the American Psychiatric Association, etc.

In general, we favor brief articles, contributions ranging from one half of a typewritten page to about eight typewritten pages.

RELOCATION
The following case illustrates two points of special interest to custody evaluators. One is that relocation seems more easily attained by custodial parents than was true in the past (but not in all jurisdictions). This may, in part, be due to regionally shrinking job pools. (It is still not easy for a custodial parent to relocate. For a complete discussion, see Herb Weissman's article "Psychotherapeutic and psycholegal considerations": When a custodial parents seeks to move away. American Journal of Family Therapy, 22 (2), 176-181.) The other point is that it always seems to me that when judges explain their decisions, they do so in broad psychological and/or legal terms. I wonder if what we are seeing here is really CYB stuff (Cover-Your-Butt), because when one reads the details of the case there is often some critical issue involved that is highly personal to the individual case. In other words, absent this personal-to-the-case-state-of-affairs, I wonder if the same judgement would have been rendered. In the following situation, the point we refer to is the fact that the father admitted it was no big deal for him to drive to the town to which the mother sought to relocate.

In a California case in which a custodial mother sought to relocate, the California Supreme Court ruled that neither a parent seeking an initial custody determination nor a custodial parent with an existing custody order bears the burden of establishing that his or her intended relocation is "necessary." The court stated that the standard of proof that should apply will be the same as that in any case involving a change of circumstances. The court further explained that a custodial parent has the right, under state law, to change a child's residence and that this right is subject to the court's power to prevent relocation only if such a change conflicts with the child's welfare or rights. In the current case, the custodial mother sought to relocate forty miles away from her current home in order to be closer to her job and her children on weekdays. The father admitted it was an easy commute for him, and that he would still be able to visit the children regularly and often. The trial court considered the health, safety, and welfare of the children and the "nature and amount of contact with both parents" and ordered that it served the best interests of the children to remain with the mother, even if she relocated. The Court of Appeal reversed this decision on the ground that the custodial mother had not established that relocation was necessary. The Supreme Court then found that the intermediate court had erred in interpreting statutory policy for "frequent and continuous contact with both parents" to imply that both parents should reside in the same area or that the custodial parent should demonstrate that relocation is necessary. It held that the trial court's broad discretion in determining custodial arrangements in the child's best interest is not constrained by statutory policy. The Supreme Court concluded that "the paramount need for continuity and stability in custody arrangements --- and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker --- weigh heavily in favor of maintaining ongoing custody arrangements." (Burgess v. Burgess; Calif Sup Ct, No. S046116, 4/15/96)

A custodial mother in Tennessee sought to relocate with her child and was denied permission by both the trial court and the court of appeals. However, the Supreme Court ruled that a custodial parent would be permitted to relocate as long as his or her motive for the move were not vindictive (i.e., intended to deny the visitation rights of the noncustodial parent). The court's ruling was an attempt to clarify the principles set forth in another case (Taylor v. Taylor) in which it prohibited a change in custody solely based on relocation and stated that "the interests of the custodial parent and the child are interrelated, if not always the same."

In the current case, the Supreme Court reasoned that the noncustodial parent could petition for a change of custody if the custodial parent's behavior poses a danger to the child. That is, if a custodial parent's move is not found to be vindictive, the noncustodial parent can then petition, proposing that the move poses a "specific, serious threat of harm" to the child. Custody could, therefore, be changed, since state law allows for a change when a custodial parent's behavior poses a danger to the child. Some examples to illustrate this point include moving a child with a serious medical problem or special educational needs to an area with inappropriate treatment facilities, or a move to reside with a person with a known history of child abuse. (Aaby v. Strange; Tenn Sup Ct, No. 03S01-9507-CH-00073, 4/22/96)

The New York Court of Appeals ruled that lower courts should no longer employ a three-step analysis to resolve relocation disputes between divorced parents. Instead, it directed the courts to weigh, on its own merits, each case of a custodial parent requesting to relocate, and to consider all relevant factors, according the greatest weight to the child's best interests, since the children are the innocent victims of the parents' divorce. It stated that no single factor should be so disproportionally weighted that it predetermines the outcome.

The three-step analysis employed by the court first determines whether the noncustodial parent would be deprived of regular and meaningful access to the child. If such a disruption of access is not demonstrated, the courts usually do not inquire further about the merits of the relocation request. However, if a disruption of regular and meaningful access is established, it is presumed that the proposed relocation is not in the child's best interest, and the custodial parent must demonstrate exceptional circumstances (economic or health-related necessity) in order to justify the move. Only after this step will the courts consider the best interests of the child. The Court of Appeals sees this model of dispute resolution as problematic because it "erects artificial barriers to the court's consideration of all of the relevant factors." For example, if deprivation of meaningful access is not demonstrated, there would be no further inquiry into parental motives for the move and its positive or negative impact on the child. On the other hand, when disruption of meaningful access is shown, the custodial parent is refused consent to move unless there are exceptional circumstances. This prevents consideration of whether the benefits of the move for the children would outweigh the effects of more limited access to the noncustodial parent.

The court pointed out that, although there could be some cases where limiting access to the noncustodial parent could be harmful to the child, there may well be other cases where less frequent visitation but more extended summer and school vacation visits are as beneficial or even more beneficial for a child, since these represent a "more normalized domestic setting."

The court directs that the effect of the move on the noncustodial parent-child relationship should continue to be a major consideration in determining the outcome of these cases. Further, the lower courts should not summarily reject as reasons for relocation the demands of a second marriage or the desire to improve economic status, especially where there would be an overall beneficial impact on the child. Additionally, the court sees the possibility of a strengthening and stabilizing effect on the family in cases where remarriage is the reason for a proposed move.

In its ruking, the court cited other factors which should be considered and weighted in relocation cases. These include the noncustodial parent's interest in gaining custody, the desirability and feasibility of a change in custody, the feasibility of a parallel move by the noncustodial parent, the good faith of the involved parents in requesting or opposing the move, the child's attachment to the parents, visitation schedules that counter the effect of a move, the quality of lifestyle permitted or denied the child by the proposed move (economic, educational, and emotional), the negative impact on the child of continued or increased interparental hostility, and the effect of the move on extended family relationships.

To summarize, relocation cases are too complex to be analyzed by the three-step model and the Appeals Court has charged the lower courts with the tasks of deciding these cases based on a consideration of all relevant factors, placing the greatest weight on what will serve the child's best interests. (Tropea v. Tropea; NY Ct App, Nos. 1 & 2, 3/26/96)

NONPARENTAL CUSTODIANS
An Ohio Supreme Court agreed with a trial court's decision to award custody of an eleven year old girl, not to her widowed father, but to a couple who had cared for her since she was one week old. The father had approved of the child's placement with the couple because of his wife's illness and death and the necessity of caring for their three other children. The court recognized the right to custody of a biological parent who is suitable over a non-biological parent. However, it ruled that the father's right to custody was not absolute and that it was in the child's best interest to forfeit his right, since he was unsuitable. The finding of unsuitability was based on the fact that he had shown a lack of interest and had essentially abandoned the child, since he did not phone her or provide financial support other than medical insurance, and he had visited her only eight times in four and a half years. (Reynolds v. Goll; Ohio Sup Ct, No. 94-1464, 3/4/96) In North Carolina, the biological parents of three children voluntarily relinquished custody of their children. The children have lived for several years with nonparental custodians who have obtained legal custody. When the parents sought to regain custody, it was granted by the trial court, based on the Petersen ruling that biological parents' right to custody is superior to that of other persons. However, the court of appeals stated that the Petersen ruling can only be applied in initial custody determinations. It reversed the trial court's order, stating that before modifying a custody order, the trial court must demonstrate that there has been a substantial change of circumstances and that a change in custody would be in the children's best interests. (Speaks v. Fanek; N.C. Ct App, No. COA95-247, 5/7/96)

HOMOSEXUALITY AND MORAL FITNESS
In a custody case involving a divorcing lesbian mother's cohabitation with another woman, a Utah trial court awarded custody of the woman's child to the father, citing the mother's moral fitness as the controlling issue in its decision. The intermediate court reversed the custody award. The Utah Supreme Court subsequently overturned the intermediate court's reversal of custody, stating that the intermediate court had erred in making the issue of the case the deprivation of the mother's parental rights because of her lack of moral fitness. It was the position of the Supreme Court that the issue was choosing between two basically good parents. It found that the trial court had not abused its discretion in concluding that the mother's lesbian relationship indicated a lack of moral fitness. The moral fitness factor and the child's stronger bonding to the father were found to be reason enough to reinstate the father as custodian. (Tucker v. Tucker; Utah Sup Ct, No. 940486, 1/17/96)

A Florida trial court refused to grant custody to a bisexual mother, stating that a "homosexual environment is not a traditional home environment and can adversely affect a child." The Court of Appeal ruled that the custody award must be reversed and remanded because the first announcement of this "judicially noticed fact" was made in the final judgement and, therefore, the mother had no opportunity to dispute it. The court stressed that trial courts can consider parental sexual conduct in assessing moral fitness and are not required to have the evidence of experts concerning harm to the child. It stated that a consideration of a parent's moral fitness should focus on the direct impact of parental behavior on the welfare of the child, and that this requires evidence. The possibility of harm to the child is not enough evidence. However, the trial court can decide on the existence of a connection between parental actions and harm to the child based on proof of the likelihood of prospective harm to the child. It does not necessarily need evidence of actual past or present harm. (Maradie v. Maradie, Fla 1st Dist. Ct App, No. 95-4068, 7/16/96)

CHANGE OF CIRCUMSTANCES
The Michigan Court of Appeals overturned a trial court's decision to transfer custody from a mother attending college classes to the unwed father who proposed that his mother serve as a babysitter for the child. The trial court had reasoned that it was better for the child to be in the care of a "blood relative" rather than a "stranger" in a university day care center. Citing case law which directs that the established custodial environment of a child may not be changed unless there is "clear and convincing evidence" that it is in the best interest of the child, the Court of Appeals stated that the existence of an established custodial environment is a question of fact, and in this case, there was an established custodial environment with the mother. The Court of Appeals found that, in addressing the statutory factor relating to the permanence of each party's family unit, the trial court had committed a legal error by evaluating each party's child care arrangements. The Appeals Court interpretation of this factor is that it is exclusively concerned with whether the family unit will remain intact, and not with an evaluation of acceptability of child care under the competing arrangements.

Since review de novo of a custody disposition is prohibited, the Court of Appeals was unable to reverse the trial court's decision and had to remand to the trial court for a re-evaluation of the statutory factor in question (i.e., permanence of the family unit). However, it ordered that a different judge hear the case, since media coverage of the original trial court hearing had created an appearance of judicial bias. (Ireland v. Smith; Mich Ct App, Nos. 177431 & 182369; 11/7/95, released 1/23/96)

Although she was appointed physical custodian of her child, an unwed mother and her child's father were given joint custody. Four years later, the father sought sole custody, citing an improvement in his circumstances (remarriage, a home and job) and unwholesome conditions in the mother's home (frequent moves, live-in boyfriends, drug use) as the basis of his request. The Mississippi Supreme Court stated that these two conditions supported a modification of custody. The chancellor of the court had denied the request for modification based on the father's change of circumstances alone. However, when the mother failed a drug test, the chancellor made a "best interests of the child" decision, transferring custody to the father. It found that these unwholesome conditions had existed in the mother's home at the time of the original custody award, and even though the child did not appear adversely affected by them, leaving the child with the mother perpetuated an unhealthy environment. It stated that a child's resilience "should not serve to shackle the child to an unhealthy home, especially when a healthier one beckons." (Riley v. Doerner, Miss Sup Ct, No. 95-CT-00007-SCT, 6/27/96)

A Florida man had custody of his 16-year-old daughter who had lived with him for 14 years. Her mother, who then moved to the same county as the father and had only increased her frequency of visitation during the most recent two years, sought a change in custody. She said that she sought the custody modification because the girl expressed a desire to live with her mother. The father claimed that the girl developed discipline problems since the mother moved into the area and had begun to question her religious upbringing. The trial court, acting on concerns that the child threatened to run away if forced to live with her father, decided that it was in her best interest to live with her mother. The Court of Appeal ruled that the mother had failed to meet the "extraordinary burden" of proof of a substantial change in circumstances--- the burden required to modify custody. It also noted that the undesirable changes in the girl's behavior which led to a change in her preference were caused by the mother, who allowed the girl to engage in activities prohibited by the father. Therefore, the Court of Appeal reversed the custody transfer. (Heatherington v. Heatherington, Fla 2nd Dist Ct App, No. 95-03782, 7/31/96)

CUSTODIAL INTERFERENCE - OUT OF STATE CONDUCT
A father left Vermont with his daughter during a scheduled visitation period, traveled to several other states, and failed to return her to her custodial mother in Vermont at the end of the visitation period. When found, he voluntarily returned to Vermont and argued before a trial court that he could not be prosecuted in Vermont since his alleged misconduct (custodial interference) had not occurred within that state. The trial court granted his motion to dismiss the case. However, the Vermont Supreme Court rejected the trial court's finding and refused to find that the crime of custodial interference occurs where the child is kept. The Supreme Court agreed with the courts of other states which have held that, regardless of where the fleeing parent takes a child, the state of residence of the custodial parent has jurisdiction over the crime of custodial interference. It reasoned that the result of the father's conduct was the mother's loss of custody of the child and that result is an element of the offense as defined by state law. Therefore, the Supreme Court reinstated the charge against the father. Other states with similar rulings include Alaska, Arizona, Colorado, Georgia, Idaho, Illinois, Maryland, Michigan, Rhode Island, Texas, and Wyoming. (Vermont v. Doyen; VT Sup Ct, No. 94-627, 3/15/96)

ADOPTION AND GRANDPARENTS' RIGHTS
In Arizona, the maternal grandmother of an out-of-wedlock child was denied visitation rights after the child's mother died and the child was adopted by the maternal grandfather and his current wife. The court of appeals upheld the decision, citing the state statute which requires that a child be born out-of-wedlock in order for a grandparent to be granted visitation rights. It stated that once the child was adopted, it acquired the status of a natural child of lawful wedlock to the adoptive parents. The court could not grant visitation rights to the grandmother since no other provision of the grandparent visitation statute applied in this case. (In re Maricopa Cty. Juvenile Action No. JA-502394; Ariz Ct App, No. 95-0068, 5/7/96)

THERAPIST-PATIENT PRIVILEGE IN ABUSE CASE
An Oklahoma couple with two children divorced, and the mother was appointed custodial parent in the divorce decree. While the children were visiting the father, he had them examined by a child psychologist who suspected abuse by the mother and reported it to a child abuse hotline. The father then filed a motion for a change of custody and called on the psychologist to testify at the hearing. In order to prevent the psychologist from testifying, the mother invoked the statutory psychotherapist-patient privilege on behalf of the children. The trial court had the Supreme Court review the question of privilege. It agreed with the rulings of other courts that a parent may not invoke privilege on behalf of the children when the interests of the parent are adverse to those of the children. It further stated that the Child Abuse Reporting and Prevention Act, rather than statutory privilege, should control in such cases. (Ellison (Eldridge) v. Ellison; Okla Sup Ct, No. 86696, 5/21/96)

RELATIONSHIP OF JEHOVAH'S WITNESSES CHILDREN WITH NONMEMBER PARENT
An Ohio father's "disfellowship" by the Jehovah's Witnesses led him to seek custody of his children, since he feared that his leaving the church would interfere with his relationship with his children. Jehovah's Witnesses are restricted in the kinds of interactions they can have with family members who are not in the church. The Court of Appeals denied the father's appeal. It stressed that the trial court had adopted a shared parenting plan, proposed by a court appointed psychologist, which was designed to minimize the risk that the children's relationship with their father would be adversely affected. It also added that the father could seek revision in the future if the plan proved to have an adverse effect on the father's relationship with the children. The court also noted that the father's concerns (religious proscriptions against blood transfusions) about the children's medical care had been adequately addressed in the plan. That is, he is to be informed about serious medical problems and has the right to ensure that they receive medical treatment. (Reier v. Reier, Ohio Ct App, No. 1372, 6/21/96)

QUADRIPLEGIC PARENT-FITNESS FOR CUSTODY
The Indiana Court of Appeals upheld a lower court award of sole legal custody of a six year old child to the child's mother, despite the fact that the mother is quadriplegic as a result of an auto accident. The father had appealed the custody decision based on the argument that the mother's disabilities prevented her from adequately parenting the child. In its ruling, the court cited a California Supreme Court decision in which it declared that the stereotype of the unfitness of a quadriplegic parent is false. The court also supported the decision to credit to the father income of $50,000 per year from the mother's $4,500,000 insurance settlement. After the accident and receipt of the insurance settlement he had quit his $50,000 per year engineering job. (In re Land; Ind Ct App, No. 54A01-9601-CV-28, 7/11/96)

Custody Courts From Coast to Coast

is edited by Gail Elliot, Ph.D.
c/o Custody Newsletter
Village Publishing
73 Valley Drive
Furlong, PA 18925


NOTE:
In response to suggestions we have now added court citations to each case description.
Thank You.

It is with great pleasure that The Custody Newsletter welcomes a contribution from forensic psychiatrist William Bernet, M.D. Dr. Bernet is Director of Vanderbilt University's Division of Forensic Psychiatry. An uncommonly creative and original thinker, he shares with us some of his thoughts on important custody issues that are usually vexing, complicated and difficult to resolve.

DESIGNING VISITATION FOR CHILDREN OF DIVORCE-

TEN STEPS FOR RAISING CHILDREN IN DIVORCED FAMILIES

WHAT CONSTITUTES "LEGITIMATE" EVIDENCE?-

MMPI-2 Norms for Child Custody Litigants

• the MMPI-2
• the Multiaxial Diagnostic Inventories: Adult Clinical Scales (MDI-C)
• the Multiaxial Diagnostic Inventories: Personality Scales (MDI-P)

• the diagnostic impressions of the client's therapist
• demographic data about the client patterned after the MMPI-2 restandardization study

• defensive normals
• defensive psychotherapy outpatients
• a distinct third group

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