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WEEK 10

Monday, November 29
PAGES: 949-977
CASES: Linda R. v. Richard E; Marriage of Cheryll Cabalquinto and Ernest Cabalquinto; Jean E. Morgan v. Eric A. Foretich; Marriage of Ellen J. and William T. Carney; Joyce A. Politte v. Richard L. Politte; Kenneth G. Lloyd v. Irma Loeffler and Alvin F. Loeffler

    CHILD CUSTODY ISSUES IN 1776: A husband had custody of his children, but he could forfeit that right if he abused his right to custody to the detriment of the child. Establishing forfeiture meant showing that the husband physically injured his child or children. The burden of establishing forfeiture was on the party challenging the husband's legal right to custody. In 1776, the wife could bring a writ of habeas corpus in the King's Bench to challenge the husband's right to custody of her children. Absent a finding of forfeiture (or agreement between the parties), the husband could bequeath the right to custody of his children.

    RIGHTS WOMEN DID NOT HAVE: Descent of property was patriarchial, women could not contract, could not sue or bequeath real property. There was not absolute divorce until 1858 (so she couldn't leave the marriage), she could not vote until 1918 and she could not hold office (the first woman to sit in the House of Commons was elected in 1919).

    CHANGE CAME GRADUALLY, LEGISLATIVELY, IN ENGLAND: The women's movement first began appearing in writings around the time of the French Revolution. Key dates:


      1839 First English custody statute, giving the chancellor the right to award custody to the mother if the child was younger than 7 years old and if the mother had not committed adultery. When the child reached the age of 7, the husband retained custody.
      1858 Absolute divorce.
      1883 Women were given the right to sue (in the first Married Womens' Property Act).
      1918 Women granted the right to vote in England.
      1926 Ended the preference of men over women in the inheritance of property.

    These rights were rights of the husband not of the father. Unwed mothers had custody of their children.

    COURTS IN ENGLAND IN 1776:

      Ecclesiatical Court: Canon law; had jurisdiction over the religions sacrament of marriage and divorce et mensa thoro but not over children; established shortly after William the Conquerer conquered England in 1066 and abolished in 1858.
      King's Bench: Common law; had jurisdiction over by writs of habeas corpus.
      Exchequer: Common law.
      Chancery: Equity; had jurisdiction over child custody; less rigid than common law and its emphasis on stare decisis.

    The law was influenced in this era by who was the Lord Chief Justice of the King's Bench, who had influence over the rest of the justices.

      LORD MANSFIELD, 1756-1788: Scottish progressive justice.
      LORD KENYSON, 1788-1802: Conservative.
      LORD ELLENBORAUGH, 1802-1814: Conservative.

    CZAPANSKIY ARTICLE: The law regards fathers a voluntary parents and mothers as presumptive parents or draftees, that is, it rewards fathers for being parents, but places the presumption of care-giving on the mother. Reforms aimed at making sure the child has positive contact with both parents has tended to drive home this division, as evidenced by the shortcomings of reforms in Washington and in Colorado.


Tuesday, November 30
PAGES: 977-996
CASES: Paula Oeler v. Richard H. Oeler; Gerald Cohen v. Renata Schnepf; Gladys Miller v. Jay Miller; Carlene S. Sutliff v. Gregory L. Sutliff

    CHAMBERS: Let the children decide where they would go, or decide custody based on what the child would choose with the hindsight of adulthood. No judge follows this.

    CUSTODY TYPES:

    1. Private ordering
    2. Temporary
    3. Permanent (initial)
    4. Modification

    About 98 percent of all custody is agreed upon by the parties.

    TRADITIONAL STANDARDS FOR MODIFICATION:

    1. Substantial change of circumstances (modification only).
    2. "Best interests of the child" analysis.

    PALMORE: A father's Fourteenth Amendment right to equal protection under the law was violated when the trial court made a custody determination based on the race of the mother's boyfriend.

    The mother, despite winning the case at the appellate level, did not win a stay. Therefore, the father retained custody. She was also denied custody after the Supreme Court case. This is an illustration of the idea that courts do not like to uproot children, that who has custody for the longest is a critical factor in determining who will win custody ultimately.

    SCHUTZ: Mother must make good-faith effort to encourage a positive relationship with the father, including refraining from criticizing his religion.

    That a feeling of hatred was fostered by the mother was a factor in this decision, Hardisty said, because of the extreme nature of her behavior (moving the children from Georgia without telling the father, moving them back to Florida without telling him for five years).

    PETERSON: No abuse of discretion to find changed circumstances sufficient to modify a custody decree where the mother gave her children 40 lashes with a leather belt because of the child's attitudes and her shortcomings as a copyist, subjected another child to near-daily beatings, subjected the younger children to the primary care of a 15-year-old and permitted a deterioration in their general condition. ALSO: Mother's excessive use of corporal punishment poses an immediate and substantial threat to the temporal well-being of the children. The mother's First Amendment rights were not violated by considering religion as a factor in custody modification because her religion was an immediate and substantial threat to the chidren's well-being.

    LINDA R.: Court abused its discretion in awarding custody of twin daughters to the father based, in part, on the woman's relationship with another man that had no detrimental effect on the children and also on the fact that the woman works.

    There were questions about the standard of review used in this case. It seemed to some (me) that the court here was simply engaged in a de novo review of the trial court's decision. Hardisty said, after a day of reflection, that the court here used a standard that was somewhere between abuse of discretion and de novo review.

    CABALQUINTO: Homosexuality in and of itself is not a bar to custody or to reasonable rights of visitation. In this case, the court determined that the court did not articulate its decision enough for the Supreme Court to determine how much the father's homosexuality colored its decision. It remanded to the trial court, which permitted the boy to visit his father in California as long as "the father does not associate with his homosexual companion to the extent that the companion is a member of the household or that the boy could get the idea that two men are other than casual friends including living in the home." This limitation was stricken on appeal. See it here: In the Matter of the Marriage of Cheryll Cabalquinto and Ernest Cabalquinto, 43 Wash.App. 518 (1986).


Wednesday, December 1
PAGES: 996-1017
CASES: C. Stephen Connolly v. Janet A. Connolly; Joseph Kujawinski v. Betty Ann Kujawinski; Patsy S. Worford v. Willis G. Stamper, Jr.; Donna Jo Scott v. William L. Wagoner; Gail Elkind v. Sylvan Byck; Dorothy Haag v. Norman Barnes

    FOUR FORMS OF ACTION IN WHICH THE CUSTODY ISSUE IS RAISED:

    1. Divorce
    2. Guardianship
    3. Neglect jurisdiction of the juevnile court
    4. Adoption
    5. Habeas Corpus
    6. Juvenile court deliquency
    7. Criminal law prosecutions
    8. Custody actions between unmarried parents
    9. Custody actions by third parties

    STANDARDS OF REVIEW: Courts dealing with family law issues have limited discretion in their decisions. Here, generally, are the rules governing discretion in the four traditional areas of family law:

    1. PROPERTY DIVISION:
      • Trial court has no discretion on whether to divide the property
      • Trial courts divide property on a just and equitable basis.
    2. ALIMONY:
      • No discretion on whether to consider awarding alimony.
      • Whether to award alimony, the amount of alimony to be awarded and the duration of the award; just and equitable.
    3. DIVISION OF RESIDENTIAL TIME:
      • Trial court has no discretion on whether allocate residential time.
      • In Washington, the court has no discretion to award equal time.
      • The division must be in the best interests of the child.
    4. CHILD SUPPORT:
      • No discretion in determining the guideline amount
      • Discretion on whether to deviate and what add-ons to include

    The King's Bench, Exchequer and the Court of Common Pleas were all trial courts, so that the judges there did not have to worry about standards of review.

    Mnookin: Each case is different; appellate court review should be limited unless it conducts the trial all over again; the trial court was in the best position to judge the situation.

    Lon Fuller: Child custody is more like an administrative decision in which the trial court is playing a managerial role and, therefore, should be afforded great deference.

    MORGAN:

    1. Trial court did not abuse its discretion by awarding two-week summer visitation rights to a non-custodial father where the mother did not prove allegations that the father was abusing his daughter.
    2. A mother in a child custody dispute may not invoke a defense of necessity where she violated a specific visitation order requiring specific conduct tailored to a specific fact situation.
    3. Successful allegation of bias on the part of the trial court would require a showing of something more than the judge committing errors of law adverse to the moving party.
    4. Mother's rights to an open hearing under the First and Fifth Amendments to the U.S. Constitution were not violated when, during a contempt show-cause hearing, the trial court closed to the public her testimony in which she recited allegations of specific sexual acts of sexual abuse committed by her ex-husband on her daughter.
    5. Trial court lacked the authority to forfeit, at a rate of $5,000 for each day a mother did not comply with a visitation order, a bond posted as security against not appearing before the court.

    CARNEY: Husband becoming physicially handicapped is not a substantial change of circumstances sufficient to justify modification of the division of residential time in a child custody dispute.

    Hardisty pointed out that the court applied the wrong test in this case. This was an initial decree, in which the court should have applied the "best interests of the child" analysis rather than the substantial chage of circumstances standard.

    At common law, there was no visitation. The Chancellor was given the discretion, through an act of Parliament in 1839, to award visition to the mother while the children was younger than 7.

    POLITTE: Non-custodial father has no cause of action sound in tort against a custodial mother who refuses to allow him temporary custody and visitation rights.

    This states the general rule.

    LLOYD: Father can sue parents of ex-wife in a diversity action in federal court for tortious interference with the custody of a child where the parents permitted the daughter and kidnapped granddaughter to stay with them occassionally, forwarded checks to their daughter and her husband and failed to inform the father of his daughter's wereabounts.

    This states the general rule.

    LESSON OF POLITTE, LLOYD: A custodial parent can sue for the tortious interference with the custody of a child, but the noncustodial parent cannot.


Thursday, December 2
PAGES: 1019-1052
CASES: Marriage of Betty J. & James R. Dawley; David P. Osborne, Jr. v. Barbara M. Osborne; John Z. DeLorean v. Christina DeLorean; Clifford F. Favrot, Jr. v. Katherine B. Barnes

    GENERAL NOTE: At common law, there was no child support, but the presence of children would be a factor in the amount of alimony awarded, as it would affect the ability to pay.

    OELER: Trial court did not abuse its discretion when it terminated a father's obligation to support his minor daughter where he made his home available to her but where she unilaterally chose to live in an apartment without offering a justifiable reason for refusing her father's offer.

    COHEN: A son abandoned his father and forfeited his claim for support by rejecting his father's visitation rights for five years, uising his step-father's name as a minor child without the knowledge or consent of his father and, upon reaching the age of majority, changing his name from that of his father to that of his step-father.

    MILLER:

    1. Pendente lite and permanent child support obligations may be imposed on a stepparent on the basis of equitable estoppel.
    2. Where a custodial parent who is a party to a divorce proceeding with a stepparent demonstrates that she is not receiving child support from the non-custodial parent and establishes by affidavit that the stepparent's conduct actively interfered with the childrens' support by their natural parent, the children should be awarded pendente lite support from the stepparent.
    3. To be entitled to permanent support from the stepparent, the custodial parent must prove that the stepparent's conduct established the three prerequisites of equitable estoppel:
      1. The stepparent must have made some representation of support to either the children or the natural parent as to his or her responsibilities in his or her relationship with them.
      2. The stepparent must have induced the children to rely on him emotionally and financially while deliberately alienating them from their natural parent's emotional and financial support.
      3. That the children will suffer future financial detriment as a result of the stepparent's representation or conduct that caused the children to be cut off from their natural parent's financial support.

    In this case, Hardsity said, the mother seems to have gotten off easy. The court remands this case for a determination of whether she proved equitable estoppel for the purposes of having permanent support imposed on the stepparent. She failed to establish this the first time, and the court is giving her a second bite at the proverbial apple.

    SUTLIFF:

    1. A parent's obligation to support minor children is independent of the child's assets. A child's funds may not be used to support children when the parent has the ability to pay.
    2. A parent-custodian who uses custodial funds to satisfy his own support obligation violates his duty of loyalty and hereafter is subject to surcharge and removal for such violation. Those who violated this duty before the date of the decision will be subject to surcharge and removal only upon a showing that they acted in bad faith.

    CONNOLLY:

    1. Under special circumstances, a divorced father can be obligated to pay for his chidrens' college education at a private institution.
    2. Trial court abused its discretion in finding no special circumstances requiring a divorced father to furnish private post-secondary education to his children where the children were academically capable of attending college, where both parents attended private colleges and secondary schools and where the children have attended private schools throughout their academic careers and where the father stressed the importanced of private education from the time his children were in nursery school.
    3. Stipulation in settlement in which the parties agreed that neither the wife nor the husband is bound in any way to be financially responsible for financing their childrens' college educations did not constitute a waiver on the part of the wife of her right to seek payment of college expenses but, rather, contemplated the need for relief at some time in the future. Regardless, this agreement was merged into the court's final decree and is, therfore, non-binding.
    4. Neither the gifts of a child's grandparents nor a child's own assets diminish the parental duty of support, but both parents are liable for support. Therefore, on remand, the court can explore his contention that she be required to get a job in order to contribute to her children's education.

    This was not a modification of support, but rather an action requesting the court to address an issue that the initial decree postponed resolution of until the future. Tradition types of post-decree support actions are modification of support, termination of support and clarification of support.


Friday, December 3
PAGES: 1052-1075
CASES: Susan M. Stregack v. Sally D. Moldofsky; Linda Sheils v. J. Stephen Sheils; Catherine E.W. Simeone v. Frederick A. Simeone; In re Knippel's Estate; Leo B. Norris, Jr. v. Alice Norris; Patricia A. Lewis v. Daniel H. Lewis; Sam Trossman v. Frances D. Trossman; Laura J. Donnell v. Conrad E. Stogel

    NOTES ON CHILD SUPPORT:
    • Courts are more likely to grant modification if the action is brought while the child is still a minor.
    • In Washington, the children of divorce are considered wards of the state until a decision as to their care is determined.
    • Duration of child support differs from state-to-state depending on the statute and whether the states provide for the support of childre in college. In Washington, there is a duty of support for children of divorced parent in college, but the obligation ends when the child reaches the age of 23.

    KUJAWINSKI: Assuming without deciding that a state law imposes an obligation upon divorced parents, separated parents and the parents of children born out of wedlock to fund the college educations of their majority-aged children while not imposing a similar obligation on parents who live with one another, such an obligation does not violate the equal protection clause of the Fourteenth Amendment.

    Under McGuire v. McGuire, there is no way for children of parents who live together to enforce any obligation of support beyond the age of majority, even if there were such an obligation on the part of parents who live together. Students in that situation would not be able to sue their parents in order to enforce such a right.

    WORFORD: Trial court did not abuse its discretion in increasing a father's support obligations from $180 per month to $1,350 per month where the father had a monthly net income of about $7,000 and where evidence showed the chold was unable to support himself and that his needs had increased dramatically from the time of the initial decree.

    The general rule is that parents have an obligation to support disabled children who would otherwise be forced onto the public dole.

    WAGONER: Court may enforce a child support obligation as a lien against a deceased obligor's estate where "compelling equitable considerations" are present, even where the initial decree precluded the availability of such a lien. In this case, one of the children suffered from an extraordinary medical problem incurring expenses which could be met by child support payments and, in the absence of the lien, all the estate would go to the father's second wife, whose lover killed the father. Major factors in determining whether such a lien should be imposed include whether the present value of alimony payments is not speculative, whether extenuating and equitable considerations militate in favor of continued alimony payments and whether no undue hardship would be created upon other dependents.

    CHILD SUPPORT AND THE UNIFORM MARRIAGE AND DIVORCE ACT: The traditional rule of child support was that it ended with the death of the obligor, the death of the child or the emancipation of the child. The UMDA changed this to permit the discretion to permit the obligation to survive death. The Washington staute implys that the court has the discretion to extend the obligation beyond the death of the obligor.

    The UMDA made alimony more difficult to modify (only if unconscionable) and custody more difficult to modify, but made modification of child support easier to achieve. When Washington adopted the UMDA, it retained the easier standards to modify alimony and child custody decrees as well.

    ELKIND:

    1. Law of the state where the obligor resides governs dispute over modification of child support.
    2. Under California law, the parties to a child support decree cannot by agreement bar any future actions for modification.
    3. It was not a violation of the Full Faith and Credit Clause of the United States Constitution for a court in one jurisdiction to modify a child support decree issued by a court in another jurisdiction.

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