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:
- Private ordering
- Temporary
- Permanent (initial)
- Modification
About 98 percent of all custody is agreed upon by the parties.
TRADITIONAL STANDARDS FOR MODIFICATION:
- Substantial change of circumstances (modification only).
- "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).