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February 12, 2019 Feature

Review of the Year 2017–2018 in Family Law: Case Digests


This year’s summary of family law cases covers approximately the period of August 31, 2017, through August 31, 2018. The case digests are presented in a topical outline format and alphabetized by state within each topic heading. This summary does not include every case from every jurisdiction but highlights some of the more important, or interesting, cases. Many digests are a result of reports submitted by lawyers in a state, our state reporters. The majority were added by the Family Law Quarterly student staff or editors.

I. Adoption

1. Consents

Alabama. K.L.R. v. K.G. S., 264 So. 3d 65 (Ala. Civ. App. 2018), cert. denied. Birth mother was not allowed to set aside her prebirth consent to adoption where she did not present evidence of fraud or undue influence.

Alaska. Dean S. v. Dep’t of Health & Soc. Serv., Office of Child. Serv., 420 P.3d 1175 (Alaska 2018). Several months after consenting to the adoption of his children, father motioned to withdraw his consent. Determining that withdrawal of the father’s consent would not be in the children’s best interest, the appellate court upheld the lower court’s denial of father’s motion.

Arizona. Frank R. v. Mother Goose Adoptions, 402 P.3d 996 (Ariz. 2017). Nonresident putative father’s failure to file in the Arizona putative father registry was a statutory ground for termination of his parental rights, even if there was some evidence mother tried to avoid him.

Indiana. E.B.F. v. D.F., 93 N.E.3d 759 (Ind. 2018). Stepmother could not adopt child without mother’s consent even though she had not contacted the child for one year and seven days. The child grew up with mother, but moved to father’s house while mother spent a year recovering from drug abuse, gained employment, and found housing. Mother’s consent was required because her willingness to distance herself while recovering from addiction and noticeable progress were justifiable cause for her failure to communicate, and because the father and stepmother blocked mother’s attempts to communicate with her son.

Kansas. In re Adoption of C.L., 427 P.3d 395 (Kan. 2018). The trial court erred in terminating an unwed father’s rights where mother did not know she was pregnant until birth. When notified, the father immediately tried to establish contact, prepared to support the child, and attempted to establish paternity but was preempted by the filing of an adoption petition. The court noted that father must be given a “real world opportunity” to establish his parental rights.

Michigan. In re Williams, 915 N.W.2d 328 (Mich. 2018). A child whose father was a member of an Indian tribe was placed into a foster family who wanted to adopt. The father initially gave his consent but later moved to withdraw it. The father’s motion to withdraw his consent was denied, as was the adoption petition in another court. The Supreme Court held that specific adoptive placement was not required for valid consent to terminate the rights of a biological Indian father.

North Carolina. In re Adoption of C.H.M., 812 S.E.2d 804 (N.C. 2018). If the biological father does not demonstrate reasonable and consistent support for the child within a certain time period, the child can be adopted without his consent.

Ohio. In re Adoption of L.R.B., 111 N.E.3d 38 (Ohio App. 2018). Where father had de minimis contact for three years, the stepfather could adopt the child without the father’s consent being required.

Oklahoma. Cruce v. Asbell, 419 P.3d 204 (Okla. 2018). The trial court erred in not holding a formal evidentiary hearing where mother tried to have stepfather adopt without father’s consent for nonsupport. The evidence presented of unpaid child support and father’s lack of positive relationship was not supported by the clear weight of clear and convincing evidence. The court vacated the adoption and remanded the case.

South Carolina. Ex parte Carter, 813 S.E.2d 686 (S.C. 2018). Mother sought to revoke consent to adoption of her two children based on allegations that her consent was involuntary and the product of duress, coercion, and extrinsic fraud. She asked to be heard seven different times trying to contest the consent. There was extrinsic fraud by the court and the attorney for the adoptive parents who blocked the biological parents from being heard and continued with the adoption despite knowing there were pending motions. When there is a claim of extrinsic fraud and the motion is filed in a reasonable time, the mother’s motion should have been heard.

Wyoming. In re Adoption of L-MHB, 431 P.3d 560 (Wyo. 2018). When a party fails to furnish necessary consents and relinquishments with an adoption petition, although sometimes fatal to the petition, it does not deprive the court of subject-matter jurisdiction. In so holding, the court overruled prior case law to the contrary.

2. Factors in Adoption

Maine. Adoption of Paisley, 178 A.3d 1228 (Me. 2018). When reunification of a child became unavailable, the foster parents filed to adopt the child, as did the adoptive parents of two of the child’s siblings. The court affirmed the judgment in favor of the foster parents because it was in the child’s best interests.

Mississippi. In re Adoption of D.D.H., 268 So. 3d 449 (Miss. 2018). Mother and putative father petitioned for him to adopt child but allow child’s biological mother to retain parental rights. The putative father was required to join his wife in the petition for adoption, but the statute did permit adoption of the child while the biological mother retained parental rights. The case was remanded with instructions to enable the putative father’s wife to join the petition and to perform a best interest analysis regarding the adoption.

Nevada. Mulkern v. Eighth Judicial Dist. Ct. ex rel. Cty. of Clark, 429 P.3d 277 (Nev. 2018). An infant placed into foster care had an older half-sister who had been adopted. The adoptive mother of the infant’s older half-sister sought adoptive placement, as did the infant’s current foster parents. The court held that neither the language of the statute nor legislative intent indicates that adoption precludes application of the rebuttable presumption in favor of placement with a sibling is in the best interest of the child.

New Hampshire. In re Y.L., 190 A.3d 1049 (N.H. 2018). The lower court erred in interpreting the adoption statute as prohibiting an unmarried man from adopting an adult child without altering legal parental status of adult child’s birth mother. A liberal interpretation of the adoption statute authorized the proposed adoption arrangement, which was contemplated and consented to by unmarried man, adult child, and birth mother.

South Carolina. S.C. Dep’t of Soc. Serv. v. Boulware, 809 S.E.2d 223 (S.C. 2018). The foster parents have standing because they are residents of South Carolina and because they brought their adoption action before DSS placed child for adoption but while child was placed in foster care with petitioners and before DSS was vested with authority to consent to an adoption.

3. Vacating Adoption

Alaska. Matter of Adoption of E.H., 431 P.3d 1190 (Alaska 2018). Maternal grandparents and foster parents entered into a settlement agreement, which was incorporated into foster parents’ adoption decree. Where the foster parents misrepresented their intent to abide by the agreement’s visitation provisions, the court upheld the vacation of the adoption decree.

Maine. Adoption of Parker J., 185 A.3d 51 (Me. 2018). After termination of parental rights, the paternal grandmother, maternal grandmother, and maternal grandfather and his wife filed competing petitions for adoption. The trial court erred in granting a joint adoption to the paternal grandmother and her partner even though the partner had not petitioned for adoption. Because the adoption was granted jointly, it could not be severed in favor of the paternal grandmother and was vacated and remanded.

II. Agreements

Georgia. Brantley v. Brantley, 814 S.E.2d 787 (Ga. App. 2018). The premarital agreement was not invalid for nondisclosure where husband’s income was adequately disclosed in an attachment to the agreement.

Minnesota. Kremer v. Kremer, 912 N.W.2d 617 (Minn. 2018). The trial court properly found that the antenuptial agreement was invalid because it contained provisions concerning the disposition of both marital and nonmarital property upon dissolution or death and was procedurally unfair. There were inadequate consideration and duress because the wife did not have an adequate opportunity to consult with an attorney.

Mississippi. Sanderson v. Sanderson, 245 So. 3d 421 (Miss. 2018). A prenuptial agreement was substantively conscionable because the agreement’s terms were fundamentally fair and, as such, were not so one-sided as to render the agreement substantively unconscionable. The chancellor properly followed the prenuptial agreement and treated familial funds kept in a joint bank account as outside the purview of the prenuptial agreement.

Ohio. Gomer v. Gomer, 86 N.E.3d 920 (Ohio App. 2017). Where a husband failed to disclose all of his assets before execution of the premarital agreement, the agreement was found invalid.

Texas. In re Marriage of I.C. & Q.C., 551 S.W.3d 119 (Tex. 2018). Where a wife sought to rescind a premarital agreement, she triggered a clause in the agreement under which she lost a $5 million payment otherwise due to her. Premarital contracts are read to determine the intent of the parties. There was no fraud or duress, and wife had agreed to the clause.

Wyoming. Long v. Long, 413 P.3d 117 (Wyo. 2018). Courts are permitted to enforce separation agreements stipulating child-custody arrangements when those arrangements coincide with the best interests of the child. Paradoxically, however, “[i]f parties have made an agreement regarding child custody, a district court need not conduct an evidentiary hearing to determine the best interests of the child.”

III. Alimony/Spousal Support

Alabama. Ex parte Wilson, 262 So. 3d 1202 (Ala. 2018). Former husband’s plan to retire coupled with former wife’s full-time employment, making her capable of supporting herself, could justify a modification of periodic alimony based on a change of circumstances that occurred after the last judgment or order.

Alaska. Hockema v. Hockema, 403 P.3d 1080 (Alaska 2017). Appellate court reversed trial court’s award of alimony, finding that it can only be granted when the spouse’s needs cannot be met through an unequal property division.

Mississippi. Harris v. Harris, 241 So. 3d 622 (Miss. 2018). The trial court erred by modifying the property settlement agreement without considering the Armstrong factors, the financial positions of both parties, and the foreseeability of Social Security payments. This decision effectively overruled an earlier one that Social Security benefits constitute a special circumstance, thus triggering a reduction in alimony.

Missouri. Archdekin v. Archdekin, 562 S.W.3d 298 (Mo. 2018). The trial court erred in requiring the husband to pay $1,500 a month, retroactive five years. A retroactive award was not authorized.

Nebraska. Connolly v. Connolly, 907 N.W.2d 693 (Neb. 2018). The trial court did not abuse its discretion in its consideration of the wife’s reduced capacity to work and the husband’s increased amount of money after taking a lump-sum payment in making the alimony award and attorney fees. The order was affirmed.

Onstot v. Onstot, 906 N.W.2d 300 (Neb. 2018). A trial court cannot condition the termination of spousal support upon cohabitation with another person. Such matters are public policy issues for the legislature. Cohabitation, however, together with a showing that such arrangement improved a former spouse’s overall financial condition, might warrant a modification.

Nevada. Parker v. Green, 421 P.3d 281 (Nev. 2018). Parties entered into a domestic partnership contract in which the man agreed to pay the woman $2,500 a month until the parties reconciled, died, or remarried, or if the parties ended their relationship due to appellant’s infidelity or dishonesty. When appellant breached, the domestic partnership terminated. A termination decree incorporated the terms of the agreement but framed the payment as “tort damages,” included a waiver of alimony, and stated that the payments would continue even if the parties reconciled. The parties entered into a second domestic partnership. Appellant filed a motion to modify alimony or, alternatively, set aside the termination decree. The court found that parties intended the payments to be modifiable alimony, not tort damages. Additionally, the parties intended payments to end upon reconciliation. The court remanded for the district court to terminate all future alimony payments.

New Hampshire. In re Hoyt, 196 A.3d 85 (N.H. 2018). Trial court properly ordered the reinstatement of alimony obligation and granted upward modification of child support payments after rejecting the husband’s argument that the original alimony order was temporary and finding that the extra cost of the youngest child’s schooling warranted an upward adjustment.

Texas. Dalton v. Dalton, 551 S.W.3d 126 (Tex. 2018). An Oklahoma court–approved settlement agreement cannot be used to allow wage withholding when Texas statutes do not allow wage withholding for spousal support.

Utah. MacDonald v. MacDonald, 430 P.3d 612 (Utah 2018), reh’g denied. Former wife’s sale of real property and investment of sale proceeds in her investment account were foreseeable at time of divorce and did not warrant modification of former husband’s alimony obligation. The governing standard of a petition to modify alimony is whether an alleged substantial change in circumstances was foreseeable at the time of the divorce, not whether it was contemplated in the divorce decree.

IV. Alternative Dispute Resolution

Florida. Williams v. Sapp, 255 So. 3d 912 (Fla. Dist. Ct. App. 2018). A mother did not appear at a “status” conference because all parties assumed the judge would accept the parties’ sixteen-page mediation agreement. The trial judge rejected and sua sponte modified it substantially by changing sole custody to shared parental custody and giving the father a tax exemption. The unsolicited redraft of the parties’ executed mediation agreement violated the mother’s due process rights.

South Dakota. Winegeart v. Winegeart, 910 N.W.2d 906 (S.D. 2018). During mediation, the wife and husband supposedly made an oral agreement to sell the marital property without Realtor fees. After the court ordered the wife to sign the purchase agreement, she brought suit to recover the Realtor fees based on the verbal agreement. Statements made in mediation are privileged and protected from discovery. An oral agreement is unenforceable. The court reasoned that allowing oral agreements to be enforceable would cause a slippery slope and destroy privilege. Mediators are only required to disclose settlements made in writing. Even if the mediator’s disclosure was admissible, the wife signed a confidentiality agreement that barred her from admitting evidence of the mediation.

V. Assisted Reproduction

Colorado. In re Marriage of Rooks, 429 P.3d 579 (Colo. 2018). In resolving a dispute over a couple’s cryogenically preserved pre-embryos upon divorce, a court should first look to any existing agreement. In the absence of an agreement, the court should try to balance both parties’ interests, looking at a number of factors, including reasons for preservation or destruction of the pre-embryos, other opportunities to procreate, reasons for not wanting to be genetic parent, and fact-specific factors.

Iowa. P.M v. T.B., 907 N.W.2d 522 (Iowa 2018). Couple who intended to be parents of child born through surrogate mother brought a breach of contract action after the birth mother refused to give them the baby. The agreement was not prohibited by statute and was not unenforceable as against public policy, and the surrogate mother’s due process and equal protection rights were not violated. The court upheld termination of surrogate mother and her husband’s rights.

Mississippi. Strickland v. Day, 239 So. 3d 486 (Miss. 2018). Married same-sex couple conceived a child using artificial insemination and divorced. The anonymous sperm donor is not a legal parent whose rights must be terminated, and the doctrine of equitable estoppel precluded the gestational mother’s challenge to the nongestational mother’s legal parentage, as there was ample evidence to show that the couple had jointly and intentionally agreed to raise the child.

Pennsylvania. C.G. v. J.H., 193 A.3d 891 (Pa. 2018). The former same-sex partner of the biological mother was not a parent to the child born of intrauterine insemination using anonymous sperm donor. She lacked standing to seek custody. The trial court did not have to consider existence of a bond prior to the couple’s split in order to determine loco parentis to the child.

VI. Attorneys

1. Guardian ad Litem/Child’s Attorney

Pennsylvania. In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017). The term “counsel” in the statute for involuntary termination refers to an attorney representing the child’s legal interests, not just a guardian ad litem.

In re Adoption of T.M.L.M., 184 A.3d 585 (Pa. Super. Ct. 2018). Child’s attorney did not properly advocate for his six-year-old child’s legal interests when he did not interview the child and put child’s preferred outcome into the record.

In re T.S., E.S., Minors, 192 A.3d 1080 (Pa. 2018). Whether the common pleas court should have appointed independent counsel for children in termination proceedings was not waivable by the mother. The right is inherently the children’s. The failure of any party to affirmatively request separate counsel cannot have constituted waiver. The court also ruled that during the contested termination-of-parental-rights proceedings, an attorney-guardian ad litem can also represent the child’s legal interests as long as there is no conflict between a child’s legal and best interests.

Vermont. In re L.H., 182 A.3d 612 (Vt. 2018). The parents whose rights were terminated had standing to raise the issue of whether attorney for the State had a conflict of interest. An attorney’s representation of the State in abuse and neglect case, after initially representing the children, gave rise to a disqualifying conflict of interest.

2. Fees

Iowa. In re Marriage of Erpelding, 917 N.W.2d 235 (Iowa 2018). The trial court erred in denying the wife’s request for attorney fees on the basis of the premarital agreement, which stated that in the event of divorce or dissolution, neither party could seek attorney fees. A premarital provision in which each spouse waived their ability to seek attorney fees was prohibited by statute, and public policy prohibits fee-shifting prohibitions on child custody issues.

Kentucky. Smith v. McGill, 556 S.W.3d 552 (Ky. 2018). Mother was awarded primary residential custody in Arkansas, then moved to Kentucky and filed the decree in 2009. Father’s action for primary residential custody was denied; mother was subsequently awarded attorney fees of $26,352.23, amended to $10,000 after reviewing the disparities in incomes. The supreme court reinstated the original judgment.

Mississippi. Carter v. Davis, 241 So. 3d 614 (Miss. 2018). Lower court awarded former wife attorney fees, as the suit was required to enforce a child support order and ensure the father’s compliance. A lower court need not find a party in willful contempt in order to award attorney fees to the party seeking to enforce a decree.

South Dakota. Hiller v. Hiller, 919 N.W.2d 548 (S.D. 2018). After finding ex-husband in contempt for violating the provisions of a visitation order, the circuit court ordered him to pay attorney fees incurred by his former spouse. In an ensuing proceeding to change custody, the court ordered him to pay additional attorney fees along with expert witness fees. The trial court properly found that the award of attorney fees was reasonable, necessary, and not excessive. The trial court abused its discretion in requiring that ex-husband pay the expert fees, which are to be paid by the prevailing party. The expert doctor testified in support of the mother.

VII. Child Custody/Visitation

1. Jurisdiction

Kentucky. Officer v. Blankenship, 555 S.W.3d 449 (Ky. Ct. App. 2018). Where the mother and children had lived in Oregon for two years before the father filed for divorce in Kentucky, it did not matter that the mother entered an appearance and agreed to designate Kentucky as the children’s home state. The Kentucky custody order was void because Oregon was the home state.

New Hampshire. In re McAndrews, 193 A.3d 834 (N.H. 2018). The Uniform Child Custody Jurisdiction and Enforcement Act requires a meaningful consideration of all relevant factors before determining whether New Hampshire is an inconvenient forum. The lower court’s order lacked meaningful consideration of relevant factors, and the case was vacated and remanded.

2. Initial Order

Alaska. Pingree v. Cossette, 474 P.3d 371 (Alaska 2018). Unmarried parents living in different towns could not agree on a permanent arrangement for shared custody so each sought primary physical custody during the school year. The father, a commercial fisherman, was unavailable for two to three summer months. The appellate court upheld an award of primary custody to the father. Evidence showed awarding primary physical custody to mother during the school year would give father only four weeks of primary physical custody during the summer. The superior court properly considered the best interests of the child, given that her parents lived in different localities.

Massachusetts. Miller v. Miller, 88 N.E.3d 843 (Mass. 2018). The Supreme Judicial Court affirmed the lower court’s ruling granting the wife’s request for physical custody and removal. Where there exists no prior custody order to guide a judge as to who had custody, the judge should perform a functional analysis to determine whether a “real advantage” exists or, in the alternative, the “best interest” test should apply in evaluating the removal.

Nevada. Bautista v. Picone, 419 P.3d 157 (Nev. 2018). The lower court abused its discretion by delegating decision-making authority to the parent coordinator in making substantive changes to the custody plan. Additionally, the mother met her burden to show adequate cause, which warranted an evidentiary hearing on the request to modify custody on the grounds that the father was dating a minor. Thus, the lower court erred in denying her request.

North Dakota. Dickson v. Dickson, 912 N.W.2d 321 (N.D. 2018). The district court failed to correctly apply the law and make necessary findings regarding the best interest factors, including the factor on domestic violence, including whether credible evidence of domestic violence has occurred, whether the evidence raises the rebuttable presumption, and, if raised, whether the presumption has been rebutted. The court must also determine whether the children’s environment under joint residential responsibility may endanger the children’s physical or emotional health or impair the children’s emotional development.

Rhode Island. Ainsworth v. Ainsworth, 186 A.3d 1074 (R.I. 2018). Trial court did not abuse its discretion in not allowing the wife to relocate with the parties’ four children from Rhode Island to Australia. The hearing justice did not overlook or misconstrue any material evidence on the husband’s prior failures including alcohol abuse and inappropriate behavior or children’s behavior. The decision and factual findings were not erroneous or clearly wrong, and the trial justice properly used the factors found in Dupre and Pettinato.

3. Joint custody

Wyoming. Bruegman v. Bruegman, 417 P.3d 157 (Wyo. 2018). Overrulng prior precedent disfavoring shared custody, the Wyoming court held it would no longer presume shared custody is contrary to the best interests of the children and would consider shared custody on an equal footing with other forms of custody.

Johnson v. Clifford, 418 P.3d 819 (Wyo. 2018). Although Bruegman overruled precedent recognizing a presumption against joint or shared custody, Bruegman did not undermine any historically recognized differences between primary and joint custody. The courts will continue to apply the “material change of circumstances” standard based upon whether the governing order awarded primary custody or joint custody.

Martin v. Hart, 429 P.3d 56 (Wyo. 2018). Shared custody should be considered on an equal footing with other forms of custody.

4. Visitation to Other Parent

Alaska. Georgette S.B. v. Scott B., 433 P.3d 1165 (Alaska 2018). Court modified custody order to give the father both sole legal and sole physical custody of the children and limited the mother to supervised visitation pending the children’s full engagement in therapy. The trial court did not abuse its discretion in concluding that the mother’s continued resistance to children’s therapy constituted a change in circumstances and finding that modification of custody was in children’s best interests. The trial court did not abuse its discretion by limiting mother to supervised visitation pending children’s full engagement in therapy.

Mississippi. Griffin v. Griffin, 237 So. 3d 743 (Miss. 2018), reh’g denied. Father awarded physical and legal custody of the couple’s four daughters because mother imprisoned. The lower court found that court-ordered, biweekly visits of the imprisoned mother were not in the children’s best interests. While physical visitation was at father’s discretion, there was substantial phone visitation. As a matter of first impression, the court recognized that incarceration alone is not sufficient to overcome the presumption that a noncustodial parent is entitled to visitation. The court concluded, however, that the lower court’s holistic determination that physical visitation was not in the best interests of the children warranted great deference.

South Dakota. In re M.C., 914 N.W.2d 563 (S.D. 2018). The trial court did not abuse its discretion in granting custody to the mother with supervised visitation to father based on evidence of child abuse and neglect of thirteen-year-old son. Although there were many issues in the mother’s household that raised flags, the court remanded with instructions to review whether it should be modified to include provisions for protective supervision of child by DSS and/or for a protection order.

5. Modification

Alaska. Edith A. v. Jonah A., 433 P.3d 1157 (Alaska 2018). The mother’s allegations were sufficient to demonstrate the father’s serious lack of cooperation with medical guidance, which could result in harm to the child. The mother was entitled to an evidentiary hearing on her motion to modify joint legal custody.

Lewis G. v. Cassie Y., 426 P.3d 1136 (Alaska 2018). A mother moved from Texas to Alaska, taking the children with her. The parties originally executed a settlement agreement awarding joint legal custody of the children to both parents, primary physical custody to the mother, and custody during the summer and Christmas holiday to the father. Cooperation between the parents deteriorated. The father, an out-of-state resident, moved to modify custody. The superior court required father’s future visitation to occur in the children’s state of residence and imposed conditions on his visitation and the parties’ communications. The court found that there was no violation of father’s due process rights and affirmed.

Moore v. McGillis, 408 P.3d 1196 (Alaska 2018). Mother moved to modify an existing custody arrangement, seeking primary custody of their daughter and to have father’s visitation rights and legal custody over his stepson terminated. The trial court did not abuse its discretion in finding that the father’s new work schedule and family arrangements did not constitute substantial change in circumstances that warranted modifying the existing custody arrangement with his daughter. Intervention of the stepson’s absent biological father amounted to change in circumstances as matter of law, and the trial court was required to consider stepson’s best interests in light of mother’s motion. The father was obligated to continue paying child support for his stepson.

Weathers v. Weathers, 425 P.3d 131 (Alaska 2018). After father retired, mother moved for modification of prior child custody order, pursuant to which she had primary physical custody of child except when father was home from working overseas. The superior court modified custody to award the father physical custody of child 59% of the year. The trial court abused its discretion by failing to consider, as part of its best interest analysis, that father intentionally misled mother about his return to work after his employment was terminated and by assigning disproportionate weight to grandparent involvement as factor in father’s favor.

Minnesota. Hansen v. Todnem, 908 N.W.2d 592 (Minn. 2018). After a parenting plan was established for a child, the father sought to modify the arrangement to provide care for the child before and after school while the child’s mother was working. The district court denied the motion because it was not in the son’s best interest. The court of appeals and the supreme court affirmed. The district court need only consider the relevant best-interest factors and was not required to make specific findings on every factor.

In re Custody of M.J.H., 913 N.W.2d 437 (Minn. 2018). A father of a child born out of wedlock sought to increase his parenting time to every other week. The district court correctly determined that the motion was actually a motion to modify physical custody, and as a result, it applied the endangerment standard. The court should use a totality of the circumstances approach to determine whether the proposed modification would substantially change the custody arrangement. Some of the factors lower courts should look at to determine this include (1) the apportionment of parenting time, (2) the child’s age, (3) the child’s school schedule, and (4) the distance between the parties’ homes.

6. Nonparent Custody

Hawaii. W.N. v. S.M., 424 P.3d 483 (Haw. 2018). The parties entered into a relationship in 2009 and decided to bring one of their granddaughters into the family and raise her as their own daughter. One of the party legally adopted the child and both of them assumed joint custody. Upon dissolution of the relationship, the parent who legally adopted the child sought to take full custody. The court held that an evidentiary hearing is required on remand, statements by the child in visitation reports were not hearsay, and the exclusion of the psychologist’s progress notes about the former partner constituted abuse.

Missouri. Bowers v. Bowers, 543 S.W.3d 608 (Mo. 2018). An unmarried mother had a child and subsequently married a man who was not the child’s biological father. The husband was listed on the child’s birth certificate. At divorce, husband requested joint physical and legal custody, as well as child support. The mother filed a motion to dismiss on the ground that her estranged husband was not the child’s biological father. The circuit court found that the mother and biological father were unfit, unsuitable, and unable to be the child’s physical or legal guardians and awarded the husband third-party custody. The supreme court affirmed, holding that permitting a husband to seek third-party custody of a child in a marriage dissolution proceeding does not violate the mother’s due process rights, as the husband had been specifically invited to act as the child’s parent for years.

South Dakota. Howlett v. Stellingwerf, 908 N.W.2d 775 (S.D. 2018). Court remanded to trial court for hearing on whether grandmother could rebut father’s presumptive right to custody as a natural parent, and natural parents have a fundamental right to the care, custody, and control of their child. A parent’s presumptive right to custody of his or her child may be rebutted by proof: (1) The parent has abandoned or persistently neglected the child; (2) the parent has forfeited or surrendered his or her parental rights to any person other than the parent; (3) the parent has abdicated his or her parental rights and responsibilities; or (4) other extraordinary circumstances exist that, if custody is awarded to the parent, would result in serious detriment to the child.

West Virginia. In re K.E., 809 S.E.2d 531 (W. Va. 2018). Grandparent-preference provision is not absolute. It is just a preference and implicitly contained a best-interests-of-the-child provision. The lower court erred in awarding custody to the grandparents based upon the grandparent-preference provision because the grandparents’ proximity to the child’s biological parents—whose parental rights had been terminated—was not in children’s best interest.

VIII. Child Protection/Welfare

1. Indian Child Welfare Act

South Dakota. In re Guardianship of I.J.L.E, 191 A.3d 404 (S.D. 2018). The trial court held that due to killing child’s mother, the father abandoned and forfeited his right to child, and he cannot preempt the court’s decision of guardianship. The brother and sister-in-law were stable guardians and complied with ICWA because they were extended family members. The trial court awarded guardianship to them and acknowledged their promise to allow child to visit his Native American family and learn of his culture. A court can grant guardianship to a nonparent based on a best interest analysis. There was no clear error or abuse of discretion found.

In re M.D., 920 N.W.2d 496 (S.D. 2018). Under ICWA, the placement must be licensed foster parents, and none of the relatives were. In addition to no licenses, the tribe did not appear for the dispositional hearing. The court rejected the father’s argument that DSS failed to comply with ICWA. Compliance with placement preferences is generally not a factor in determining whether active efforts were made. If they were a factor, DSS complied with the preferences or had good cause to depart from them. The trial court’s order terminating parental rights is affirmed.

2. Child in Need of Care

Alaska. Kiva O. v. St. Dep’t of Health & Soc. Serv., 408 P.3d 1181 (Alaska 2018). A parent’s fundamental right to consent to medical treatment of a minor child is not overly burdened when the court properly applies the test developed in Myers v. Alaska Psychiatric Inst. and finds that medical treatment is in the best interest of the child. The state must articulate a compelling interest and use the least restrictive means to advance that interest. An open-ended treatment plan has a high risk of a change in circumstance. The court should regularly review treatment authorizations that are ordered over the parent’s objection. Thus, courts should have oversight hearings on medical treatment plans for minors every 90 days.

California. In re I.C., 415 P.3d 773 (Cal. 2018). The court expanded the Lucero L. test for determining when hearsay statements of minor children indicate a “special indicia of reliability.” When a reviewing court examined whether or not admitting the hearsay statements was reversible error, the court must consider the record as a whole, including reports, video, and other testimony.

District of Columbia. In re J.M., 193 A.3d 773 (D.C. Ct. App. 2018). The trial court’s decision to change a permanency goal from concurrent goals of reunification and adoption to adoption only was appropriate after an adjudication of children as neglected. CFSA had expended reasonable efforts to help the mother address the concerns that resulted in her children being removed and adjudicated neglected. The mother had not completed a mental health assessment, had not attended a parenting class, had not visited her children on a regular basis, and had not been in contact with CFSA for approximately two months.

J.U. v. J.C.P.C., 176 A.3d 136 (D.C. Ct. App. 2018). A finding of “abandonment” in a Special Immigrant Juvenile (SIJ) status hearing could be made on the basis that the juvenile’s parent in the home county never provided care or support and that if the juvenile was to be returned to the home county, he could not live with the parent. A finding of abandonment is considered to assess the impact of the history of the parent’s past conduct on the viability, i.e., the workability or practicability, of a forced reunification of parent with minor, if the minor were to be returned to the home country.

Kentucky. Cabinet for Health v. C.B., 556 S.W.3d 568 (Ky. 2018). A child was determined to be neglected because father had a prior termination of parental rights proceeding, and his substance abuse problems threatened his child with harm. The Kentucky Supreme Court determined father did not have to exercise custody or control over the child so long as he occupied a position of authority, which he did as the child’s parent. Furthermore, father had a history of substance abuse problems, as evidenced by the prior termination of parental rights, and the substance abuse problems remained unresolved.

Nevada. Philip R. v. Eighth Judicial Dist. Ct. ex rel. Cty. of Clark, 416 P.3d 242 (Nev. 2018). Both foster parents and the Department of Family Services appealed from a lower court decision to remove a child from her foster home and place her with maternal relatives approximately twenty months after the initial removal. While the maternal relatives’ delay in seeking placement did not render the familial placement preference inapplicable, the lower court misapplied and relied too heavily upon the familial preference in its best interest analysis. The lower court did not give proper deference to the placement decision of the Department of Family Services. A writ of mandamus was issued for a de novo trial.

New Hampshire. In re J.H., 188 A.3d 1030 (N.H. 2018). State supreme court found that the lower court had the statutory authority and acted constitutionally when putting child in out-of-home placement and imposing conditions on both parents to remedy the circumstances that threatened harm to the children before allowing for reunification and to hold the requested parental fitness hearing.

3. Termination of Parental Rights

Alabama. Ex Parte G.L.C., No. 1170813, 2018 WL 5307629 (Ala. Oct. 26, 2018). As a matter of first impression, principles of equity required that the mother’s notice of appeal in father’s action to terminate mother’s parental rights to son for abandonment be deemed filed on the date that the mother physically appeared at clerk’s office and presented the notice.

Alaska. Duke S. v. Dep’t of Health & Soc. Serv., 433 P.3d 1127 (Alaska 2018). The trial court erred in terminating father’s parental rights in finding that child was in need of aid on basis of father’s abandonment, neglect, or father’s incarceration. The trial court also erred in determining that Office of Children’s Services made reasonable efforts to reunify father and child.

Justin B. v. Alaska, Dep’t of Health & Soc. Serv., Office of Child. Serv., 234 P.3d 1245 (Alaska 2018). The appellate court upheld termination of father’s rights to two children based on his homelessness, parenting abilities, substance abuse issues, mental health, and domestic violence. The Office of Children’s Services made timely, reasonable efforts to reunify the family, and father failed to remedy the conduct and conditions to which he subjected the children.

Arizona. Alma S. v. Dep’t of Child Safety, 425 P.3d 1089 (Ariz. 2018). Sufficient evidence supported juvenile court’s findings that severance of mother’s parental rights to two children was in the children’s best interests on the ground that she was unable to protect them from father’s abuse while she was at work.

Brenda D. v. Dep’t of Child Safety, 410 P.3d 419 (Ariz. 2018). Court terminated mother’s parental rights because she was not consistently providing her daughter, who had Down syndrome, with the proper care. The mother, by failing to timely appear for a scheduled hearing, waived her legal rights and is deemed to have admitted the allegations in the petition; the juvenile court violated the mother’s due process rights by permitting her counsel to address only the weight of the evidence, not its admissibility, but such error was not fundamental.

Colorado. C.W.B. Jr. v. A.S., 410 P.3d 438 (Colo. 2018). Foster parents lack standing to appeal a court’s ruling not to terminate a biological parent’s rights because the foster parents do not suffer an injury in fact—even when they want to adopt the child. The rights of the child are protected by the guardian ad litem and the Department of Social Services’ ability to appeal.

People v. G.S., 416 P.3d 905 (Colo. 2018). With limited exceptions, the Colorado Children’s Code authorizes appeals of all orders in dependency or neglect proceedings that are “final judgments.”

Georgia. In re I.L.M, 816 S.E.2d 620 (Ga. 2018). The juvenile court terminated the parental rights of a mother and father from their three children. The case was preparing for trial, and the parties were ready to proceed, when the court, on its own, decided to continue the hearing until a later date and set the adjudication hearing for a later time. The trial court’s order granting the continuance of adjudication hearing on dependency proceeding beyond the time limits imposed by statute failed to establish good cause for the continuance.

Idaho. In re Doe, 416 P.3d 937 (Idaho 2018). Supreme Court found that the magistrate abused its discretion when it did not prioritize sibling placement in considering permanency plans of a child and his half-sister.

Doe Child. v. Idaho Dep’t of Health & Welfare, 415 P.3d 945 (Idaho 2018). The court reversed termination of father’s parental rights based on the best interests of the children. Termination requires clear and convincing evidence.

Illinois. In re N.G., 155 N.E.3d 102 (Ill. 2018). A father’s parental rights were terminated because of three prior felony convictions before his child’s birth. Because one of the convictions was based on a statute previously declared unconstitutional, it should not have been considered in the determination of the father’s fitness to parent. Without the consideration of that conviction, the statute allowing the father to be declared “depraved” would not have been triggered, and thus his parental rights would not have been questioned.

Iowa. M.D. v. K.A., 921 N.W.2d 299 (Iowa 2018). Juvenile court terminated mother’s parental rights of her five children after a hearing in which the mother gave testimony by telephone but was not present due to her incarceration. The supreme court reversed, holding that the mother’s due process rights were violated when she was only allowed to participate in the hearing by telephone.

Maine. In re Child of Gustavus E., 182 A.3d 153 (Me. 2018). Father was convicted of unwanted sexual contact that occurred when the victim was six to eight years old. Though he completed a voluntary rehabilitation program for sex offenders, a shift in assessment tools used meant his risk of reoffending could not be qualified. The court concluded that if father was released on time and continued treatment, then it would still jeopardize the safety of the child because the child would then be of the same age as father’s previous victim. The court also concluded father was unfit and termination of his parental rights was in the best interest of the child.

Maryland. In re Adoption/Guardianship of H.W., 189 A.3d 284 (Md. Ct. Spec. App. 2018). A child, who had never met his father, was placed in the custody of the state. The father became aware of the child and wanted to be involved in the child’s life, but he was on probation in another state. The child’s foster family was willing to adopt the child, who was also having behavioral issues. The Department filed a Petition for Guardianship with the Right to Consent to Adoption or Long-Term Care Short of Adoption for the child. The court examined the factors as well as nine other factors to determine whether exceptional circumstances existed. The juvenile court found that the father was not unfit but that exceptional circumstances existed that would make it in the child’s best interest to be under the Department’s guardianship. Juvenile courts are permitted to consider custody-specific factors in termination of parental rights proceedings.

Massachusetts. Care and Protection of Penelope, 97 N.E.3d 348 (Mass. 2018). A father filed a petition for relief from denial of a request for induction that prevented a child from being removed from the United States that was denied. He appealed. The Supreme Judicial Court granted the dismissal of appeal for lack of prosecution, where the father did not explain his failure to file a brief and made unsubstantiated allegations concerning the child’s treatment outside of this country.

Minnesota. In re Welfare of S.R.K., 911 N.W.2d 821 (Minn. 2018). Social Services moved to terminate parental rights after being was involved with parents for several years due to verbal domestic incidents, drug and alcohol use, chronic homelessness, and alleged criminal activity. The mother was Native American. The evidence must support beyond a reasonable doubt the court’s finding that the parent’s continued custody of the children was likely to result in serious emotional or physical damage to the children, and the evidence must be supported by a qualified expert witness testimony.

Mississippi. E.K. v. Mississippi Dep’t of Child Prot. Serv., 249 So. 3d 377 (Miss. 2018). After mother tested positive for marijuana and refused to be tested again, the department of child welfare petitioned for an adjudication of the child as a neglected child. The Youth Court’s adjudication of a child as neglected violated the parent’s due process rights by not serving the requisite notice of the hearing and not informing the mother of her right to counsel at the hearing. The mother’s marijuana use was not sufficient to support an adjudication of neglect because there was no evidence to show the child was ever actually neglected.

Nevada. In re S.L., 422 P.3d 1253 (Nev. 2018). Parental rights of both parents were terminated after they failed to acknowledge court-ordered therapy regarding the abuse their children suffered. The parent’s privilege against self-incrimination had not been violated by a requirement to take part in meaningful therapy to ensure the children’s safety and upheld the finding of parental fault where the parents did not address the abuse. Additionally, the lower court’s decision was not based merely on the therapy but on substantial evidence supporting the finding that termination was, in fact, in the best interests of the children.

New Hampshire. In re O.D., 197 A.3d 646 (N.H. 2018). The statutory ground for the termination of parental rights when parents failed to correct conditions that led to the adjudication of neglect within twelve months did not require the Division to file petitions to again adjudicate children abused or neglected when the children were removed from the home within twelve months. The parents were not entitled to review of the claim they had a right to counsel in the original proceedings against the grandmother to adjudicate the children as neglected.

New Mexico. In re Anhayla H., 421 P.3d 814 (N.M. 2018). Parental rights were terminated after father entered a no-contest plea to allegations of neglect and abuse of his two-year-old child and was in considerable noncompliance with the family treatment plan adopted by the court. There was substantial evidence to support the lower court’s finding that the Department made reasonable efforts to assist father. The lower court appropriately analyzed the child’s health and safety as well as whether the conditions and causes of the neglect and abuse were unlikely to change in the foreseeable future.

Oklahoma. In re J.L.O., 428 P.3d 881 (Okla. 2018). Heroin-addicted mother appealed termination of her parental rights. The transcript of the trial judge verifying that mother fully consented to waiving her right to jury trial was enough to show she waived her right knowingly, voluntarily, and intelligently. The mother did not have a Sixth Amendment right of confrontation, as the confrontation clause only applied to criminal cases. The full range of procedural safeguards that are applied in parental termination cases are based solely on due process. When the state introduces a witness via telephone, it did not violate due process because the appellant has the ability to conduct a cross-examination just as she would in person.

Pennsylvania. In re A.J.R.-H & I.G.R.-H., 188 A.3d 1157 (Pa. 2018). The manner in which the 167 exhibits were admitted did not satisfy the requirements of the business records hearsay exception because there was no witness presented by CYS to support the exhibits’ admission. The admission of these exhibits played a definite role in the court’s decision to terminate the parental rights. This was not harmless error and violated parent’s due process rights. The case was remanded for a new hearing.

Rhode Island. In re Izabella G., 140 A.3d 146 (R.I. 2018). The court terminated incarcerated father’s parental rights on sufficient facts to support a finding of neglect. The marriage and family therapist counselor was qualified to be an expert witness in the area of traumatized children; the daughter’s letter was able to be admitted because it qualified under the medical diagnosis exception for hearsay. The failure by DCYF to produce a signature on a disclosure of permanency form was not enough to warrant a reversal of parental termination.

In re James H., 181 A.3d 19 (R.I. 2018). Although the court can appoint expert witnesses, the parties can call expert witnesses of their own choosing. The admission that mother had been previously arrested for marijuana did not violate the Rules of Evidence because the information was not offered to attack her credibility but, rather, was introduced in order to refresh her memory of prior run-ins with DCYF. The error of admission also would have been harmless, as the trial justice did not even consider it in her ruling. The trial court did not overlook mother’s proclaimed compliance with DCYF’s plans, but instead had noted that she did not cooperate and made no progress in either the case plans or objectives, had been discharged from multiple programs that were meant to help her because of noncompliance, and had also not seen her children since August 17, 2015, and never petitioned the court for visitation rights after they were suspended in October 2015.

South Carolina. S.C. Dep’t of Soc. Serv. v. Smith, 814 S.E.2d 148 (S.C. 2018). The court held that the statutory ground for termination of parental rights is met when the child is abandoned. “Terminating the parental rights of an incarcerated parent requires consideration of all of the surrounding facts and circumstances in the determination of willfulness. The voluntary pursuit of lawless behavior is one factor which may be considered, but generally is not determinative.” The father needed to make prior arrangements for the care of the child before surrendering himself to jail. After determining that father willfully abandoned and willfully did not contact the child, the court used a best interest analysis and granted adoption to the foster parents.

Texas. In re A.C., Nos. 2018-308 & 2018-309, 2018 WL 5304691 (Tex. Oct. 26, 2018). Under the elevated proof standard, a parent’s unrecounted and uncontroverted admission that termination is in her children’s best interests, coupled with stipulations as to grounds for termination and permanency plans, is evidence to support the trial court’s best interest findings. Such evidence, in the form of statements in a mediated settlement agreement signed by the parents, counsel, and others, is sufficient to support termination.

In re H.S., 550 S.W.3d 151 (Tex. 2018). Child’s maternal grandparents requested that they be appointed child’s managing conservators with the right to designate her primary residence. The child lived in her maternal grandparents’ home for the first twenty-three months of her life, and during the last eight of those months, her grandparents were her primary caretakers and providers. The grandparents continuously engaged in the parent-like role on a day-to-day basis, and therefore had standing to pursue a suit affecting the parent-child relationship under the Texas statute.

West Virginia. In re Guardianship of K.W., 813 S.E.2d 154 (W. Va. 2018). A temporary guardianship granted over the natural parents’ objection based on substantiated allegations of abuse and neglect does not provide a permanent solution. Here, grandparents filed a petition seeking custody of their grandchildren based upon allegations of abuse. In turn, the family court awarded temporary guardianship after finding that the children’s father posed a legitimate threat. After the circuit court denied the parents’ motion for reconsideration, the family court awarded the grandparents permanent guardianship over the children. Eventually, the parents appealed. The Supreme Court of Appeals reversed. It held that only the circuit court had proper subject-matter jurisdiction over the grandparents’ petition for guardianship. Accordingly, the court set aside the permanent guardianship. However, in light of the ongoing and credible threat of abuse, the court maintained the grandparents’ temporary guardianship pending further proceedings.

In re J. G., 809 S.E.2d 453 (W. Va. 2018). Termination of biological parents’ parental rights—such that the child’s foster parents could attain permanency—was in child’s best interests. The paramount concern in cases involving abuse is the health, safety, and welfare of children. The statutory and rule time limitations and standards are mandatory. They may not be disregarded or enlarged by courts without statutory authority. As such, “[a]ny discretion granted to the circuit court within this framework is intended to allow the court to fashion appropriate measures and remedies to highly complex familial and interpersonal issues—it does not serve as a blanket of immunity for the circuit court to manage abuse and neglect cases as its whim, personal desire, or docket may fancy.”

State ex rel. C. H. v. Faircloth, 815 S.E.2d 540 (W. Va. 2018). Pre-adoptive parents and relative caregivers who occupy only a statutory role as individuals entitled to notice and a hearing are subject to discretionary limitations on the level and type of participation as determined by the circuit court. Consequently, “[F]oster parents (pre-adoptive parents, and relative caregivers) who have been granted the right to intervene are entitled to all the rights and responsibilities of any other party to the action.” The court modified a prior ruling in which it had limited intervenors’ participatory rights and privileges.

IX. Child Support

1. Income

Alaska. Christopher D. v. Krislyn D., 426 P.3d 1118 (Alaska 2018). The superior court awarded mother sole physical custody and ordered father to pay child support, effective from the first day of the month following the order. The superior court did not abuse its discretion by refusing to vary father’s child support obligation because he failed to show “good cause” for the exception. The child support obligation began from the date father and mother stopped cohabiting.

Wyman v. Whitson, 421 P.3d 99 (Alaska 2018). On a case of first impression, a parent’s fishing permits and individual fishing quota shares are perpetual assets that do not decline in value or wear out over time. Amortization of a parent’s perpetual assets is not deductible from income as it pertains to child support calculations.

Pennsylvania. Hanrahan v. Bakker, 186 A.3d 958 (Pa. 2018). In high-income cases, the trial court should consider the reasonable particular child’s needs as well as conduct a separate reasonable needs analysis based on factors found in Pennsylvania law as well as the income and expense statements from each case. A parent’s voluntary contribution to a trust is not considered a special need or circumstance to render the proper amount of support given by the trial court as unjust or inappropriate and will not reduce the amount of support that is supposed to be awarded. The superior court erred in determining father was the breaching party because the father never stated that he no longer agreed to pay child support; he merely stated that he disagreed on how the mother was interpreting the Pennsylvania guidelines. Therefore, mother’s attorney fees should not be awarded.

Texas. In re C.J.N.S., 540 S.W.3d 589 (Tex. 2018). Mother, who did not have physical custody or guardianship, brought action for child support for her adult daughter, who has a medical condition that prevents her from being employed. A parent may be ordered to pay support for an adult child if the child requires substantial care and personal supervision because of a mental or physical disability existing on or before the child’s eighteenth birthday. The mother correctly interpreted the statute in that physical custody is not the only way to receive support. Persons who financially support the child may be entitled to child support.

2. Modification/Enforcement

Arizona. State ex rel. Des v. Pandola, 408 P.3d 1254 (Ariz. 2018). The father registered an Illinois child support order and filed a proposed form of judgment, stating the amount of arrears was zero. The mother requested a hearing to contest the amount of arrears, which was denied as untimely. Arizona’s Uniform Interstate Family Support Act allows an obligee to contest an obligor’s statement of child support arrears, notwithstanding the obligee’s failure to request a hearing within twenty days of receiving notice of the order’s registration.

Arkansas. Dare v. Frost, 540 S.W.3d 281 (Ark. 2018). The court found father had shown that a material change in circumstances existed to justify modification of the prior visitation order and that an increase in value of father’s stock portfolio was not “income” required to be included in calculation of his child support obligation.

Maine. Higgins v. Wood, 189 A.3d 724 (Me. 2018). Father was ordered to pay $297.15 per week in child support for three children up to eighteen years of age. In 2009, when the oldest child turned eighteen, father asked the agency to reduce the amount of child support owed for the remaining two children but did not file a motion to amend the order until 2015. The court found the original child support order was not self-effectuating and a new court order is needed to determine payments when circumstances change.

Mississippi. McKinney v. Hamp, 268 So. 3d 470 (Miss. 2018). Court properly found that the signing bonus of a football player constituted changed circumstances, which supported upwards modification. The increase was also ordered to be retroactive to date, requiring retroactive payments. The court found that supersedeas bonds were not effective to stay prospective, monthly child support obligations, but it was improper to hold the father in contempt because first-impression reliance on the supersedeas bond was not contemptuous or disobedient. The case was remanded on the tax issue.

Nevada. Miller v. Miller, 412 P.3d 1081 (Nev. 2018). Mother and father agreed to shared joint physical custody of one child, but the mother had primary physical custody of the other child. The parents could not agree on child support. The lower court ordered a monthly sum of $345.00. The lower court erred in its analysis and in its failure to explain its calculation of child support. First, the court should determine each parent’s support obligation based on the percentage rate, correlated with the number of children. Then, the court should divide the result of the first step based on the number of children, offset the obligations by children they share jointly, and add the offset amount to the full amount of the child support obligation for the noncustodial parent. Finally, the court should ensure the amount paid by the noncustodial parent does not exceed statutory maximums. Factors warranting deviation may be considered.

New Hampshire. In re Silva, 188 A.3d 285 (N.H. 2018). The court found no findings on the record to support the downward deviation from the child support guidelines, as required by statute. The New Hampshire Supreme Court supported the equal division of marital assets as equitable, considering the relevant factors, but found that the trial court lacked findings justifying its treatment of the 529 account and other property. Therefore, the New Hampshire Supreme Court held that the property distribution, in its entirety, must be vacated and remanded.

In re White, 181 A.3d 239 (N.H. 2018). The New Hampshire Supreme Court held that child support does not terminate upon emancipation, but rather when the father petitions for modification of child support.

X. Cohabitation

Alaska. Tomal v. Anderson, 426 P.3d 915 (Alaska 2018). When domestic partnership ended, male cohabitant filed suit seeking money for female cohabitant’s share of the property expenses that he had been paying, and for unauthorized expenditures she made with his earnings and credit card. When classifying property from terminated domestic partnership, the parties’ intent is a question of fact. The legal significance of that intent is a question of law. The trial court did not err by classifying only the portion of male cohabitant’s pension accumulated during the partnership as partnership property; by classifying boat as male cohabitant’s separate property once domestic partnership ended; by ordering an equalization payment; in declining to credit male cohabitant for post-separation property expense payments; or by granting female cohabitant $500 in costs. The trial court did err in classifying female cohabitant’s truck as partnership property and by valuing an excavator at $1,000 when record showed that $6,000 was the best fair market value. The trial court may apply divorce exception to the general rule, allowing award of attorney fees to prevailing party in domestic partnership cases.

XI. Divorce

Delaware. Daskin v. Knowles, 193 A.3d 717 (Del. 2018). The wife, a dual citizen of both the United States and Greece, traveled back and forth quite often. In 2015, she moved to Delaware and sought an affidavit of a permanent move back to the United States due to marital difficulties. Afterwards, she returned to Greece several times to visit her children and friends. The husband, a citizen of Greece, contended the time that the wife spent in Delaware was temporary and for a limited purpose and that she was still a primary resident of Greece. The wife filed for divorce, and the husband moved to dismiss the divorce petition for lack of jurisdiction. The court must hold an evidentiary hearing to determine whether the wife satisfied the six-month domicile requirement, and service of process on the husband by mailing and publication was invalid under the Hague Convention.

Maine. Schulz v. Doeppe, 182 A.3d 1246 (Me. 2018). Where husband moved to Florida to evade process on a domestic violence issue and could not be located to serve him with the divorce papers, the court allowed wife to publish the notice of the divorce complaint in a newspaper that circulated in his community as an alternative means of process. Husband did not appear for the hearing so a default divorce was granted against him. On appeal, the court affirmed the judgment.

Mississippi. Gerty v. Gerty, 265 So. 3d 121 (Miss. 2018). All parties argued that the chancellor erred in sua sponte deeming the Mississippi statutory scheme unconstitutional and in granting an unrequested irreconcilable-differences divorce. The lower court erred in its constitutionality analysis, and also erred in applying the affirmative defense of condonation to wife’s adultery.

Ridgeway v. Hooker, 240 So. 3d 1202 (Miss. 2018), reh’g denied. Subsequent to a written agreement by both parties, the lower court entered a judgment of divorce due to irreconcilable differences. Husband later filed a motion for relief from the final judgment of divorce, challenging the court’s personal jurisdiction over wife, who was not served. The court found the chancellor had subject matter jurisdiction, as the wife had waived any objection to the exercise of personal jurisdiction, and the husband lacked standing to complain about an error he created.

Vermont. Maghu v. Singh, 181 A.3d 518 (Vt. 2018). As matter of apparent first impression, the court held that a temporary nonimmigration visa status did not prevent a person from establishing residency, which was required for trial court to have subject matter jurisdiction over the divorce action.

Penland v. Warren, 194 A.3d 755 (Vt. 2018). The Supreme Court of Vermont held that it had the authority under general catchall provision of relief from judgment rule to modify a final property-division order based on agreement of the ex-husband and ex-wife after divorce order became absolute.

XII. Domestic Violence

Alaska. Ruerup v. Ruerup, 408 P.3d 1203 (Alaska 2018). It was error to modify a factual finding of a long-term domestic violence protective order when the order is final, neither party appealed the order, and the domestic violence proceeding was not consolidated with the divorce proceeding.

Minnesota. Thompson v. Schrimsher, 906 N.W.2d 495 (Minn. 2018). Mother filed a protective order for herself and minor child against the child’s father based on allegations of physical abuse that had occurred four years prior to the petition. The district court issued a protective order, preventing the father from contacting the mother for two years. To show that “domestic abuse” has occurred, a petitioner need only demonstrate that “physical harm, bodily injury, or assault” has occurred, regardless of when it happened. The mother made the requisite showing to find that domestic abuse had occurred. The trial court did not abuse its discretion, as there is no temporal requirement on when the “domestic abuse” occurred.

Nebraska. Maria A. ex rel. Leslie G. v. Oscar G., 919 N.W.2d 841 (Neb. 2018). Mother was granted a domestic abuse protection order after father hit the child or threatened to do so. Upon appeal, the district court rescinded the protective order. The court held that the district court did not err in rescinding the domestic violence protective order.

Wisconsin. State v. Dorsey, 906 N.W.2d 158 (Wis. 2018). The common law “greater latitude” standard allowed evidence of prior bad acts to be admissible in domestic violence cases. Circuit courts can admit “evidence of other, similar acts of domestic abuse with greater latitude, as that standard has been defined [at] common law, . . . .” The court reasoned that its holding not only afforded due respect for the statute’s plain language, but it also maintained the common law’s well-established framework. The defendant was convicted of aggravated battery related to domestic violence. The trial court had properly admitted the evidence of prior domestic abuse in accordance with the common law’s greater latitude standard.

XIII. Marriage

Rhode Island. Luis v. Gaugler, 185 A.3d 497 (R.I. 2018). The evidence offered was not enough to prove with clear and convincing evidence that a common law marriage existed. Three elements must be met: (1) the parties had the capacity to marry, (2) the parties seriously intended to enter into a mutual husband-wife relationship, and (3) the parties’ conduct was of such a character so as to lead to a belief in the community that they were married. Here, man did not have woman in his will, they had never filed joint tax returns, they did not have joint bank accounts, and woman had many documents, such as mortgage and insurance applications, that listed her as single. There was not enough proof to show intent to marry so no divorce needed.

XIV. Paternity/Parentage

Florida. Simmonds v. Perkins, 247 So. 3d 397 (Fla. 2018). The biological father and mother of a child were engaged in a three-year relationship. The father was never informed that the mother was married to a man who now asserted parentage. The child’s biological father, who had a three-year relationship with the mother whom he did know now was married, has standing to rebut the presumption of marital legitimacy. He was able to show “substantial and continuing concern” for the welfare of the child.

New Hampshire. In re Neal, 184 A.3d 90 (N.H. 2018). Purported father filed a motion to rescind the voluntary acknowledgment of paternity executed at the child’s birth six years earlier. The supreme court affirmed the lower court’s granting the motion on the grounds that the purported father had mistakenly believed himself to be the biological father as the biological mother never disclosed the possibility that this may not be true. The mistake of fact standard was appropriately applied, and despite the purported father’s delay in moving to rescind paternity, it was not an error for the trial court to grant the motion.

New Mexico. Tue Thi Tran v. Bennett, 411 P.3d 345 (N.M. 2018). The original Uniform Parentage Act (UPA) was in effect at the time of the husband and wife’s divorce and therefore applied to the subsequent determination as to who was the child’s father. The child’s biological father had rebutted the marital presumption of paternity through use of biological evidence. The lower court’s subsequent stipulated order adopting a memorandum of understanding constituted an adjudication on the issue of paternity. The memorandum attempted to outline “co-parent” rights for the wife, husband, and biological father. The term “co-parent” is not recognized within marriage statutes or by the UPA. Husband was left as a third party with visitation rights, not a parent. The fifteen-day term of imprisonment imposed by the lower court was not only an inappropriate remedial sanction for civil contempt of court but also an abuse of discretion for mother and biological father’s violation of order.

XV. Property Division

Alaska. Gordon v. Gordon, 425 P.3d 142 (Alaska 2018). It was an abuse of discretion for the trial court to apply the coverture fraction at the division stage of the equitable distribution of retirement benefits. The coverture fraction should be used to determine which parts of a retirement benefit are marital property and which parts are separate property. It should not be used to discount the value of marital property or as a guideline for equitably dividing marital property.

Olivera v. Rude-Olivera, 411 P.3d 587 (Alaska 2018). In divorce, the Superior Court awarded fifty-eight percent of the marital estate to former husband, ordered former husband to make a sizable equalization payment to wife, and granted wife’s motion for attorney fees and costs. The husband was not harmed by wife’s deficiencies in her initial disclosures of financial information; evidence supported valuation of house, which was marital property, for an amount of $208,000; husband’s conduct in the litigation supported award of enhanced attorney fees of $5,000 for bad-faith conduct; and husband was not entitled to a hearing on attorney fees.

Connecticut. Shirley P. v. Norman P., 189 A.3d 89 (Conn. 2018). When a property distribution award heavily favors one party and is awarded based solely on a criminal conviction, and the conviction is subsequently overturned, the award is stripped of any collateral estoppel effect. Reversal is required when a finding of marital breakdown is caused exclusively by the criminal conviction and nothing else.

Kansas. In re Marriage of Williams, 417 P.3d 1033 (Kan. 2018). Ex-wife was awarded twenty-five percent of ex-husband’s military retirement benefits in their divorce twenty years ago and filed a petition to garnish ex-husband’s benefits. Ex-husband claimed the court did not have jurisdiction to award ex-wife any of his military retirement benefits during the original divorce because of the Uniformed Services Former Spouses’ Protection Act (USFSPA). The Kansas Supreme Court determined because ex-husband did not object to the court’s jurisdiction at the divorce proceeding and participated then, he consented to the court’s jurisdiction under the USFSPA.

Kentucky. Doyle v. Doyle, 549 S.W.3d 450 (Ky. 2018). Parties divorced in 1998. Ex-husband was ordered to pay $24,277.02, and the order was silent on interest. Ex-wife filed garnishments and a lien on ex-husband’s property. The Kentucky Supreme Court reversed and remanded to the trial court to award interest at a twelve percent annual rate because the original divorce decree was liquidated.

Louisiana. Webb v. Webb, 263 So. 3d 321 (La. 2018). Husband forged wife’s signature on a loan taken out against the mortgage, then hid the loan from her. After the divorce, the ex-husband filed a claim to label the $250,000 loan as a community obligation because he borrowed it to pay community debts and sought reimbursement for loan payments from his now ex-wife. Ex-husband’s claim was rejected by the trial court because he confessed to taking sole responsibility for the debt. Under the theory of judicial estoppel, the Louisiana Supreme Court held ex-husband to be solely responsible for the loan.

Minnesota. Gill v. Gill, 919 N.W.2d 297 (Minn. 2018). While married, a husband purchased an ownership interest in a company. At divorce, after the court’s valuation date for marital property but before the dissolution, the company was sold, giving the husband the right to either payment up front or two future, contingent earn-out payments. The court had to consider whether future, contingent earn-out payments are marital or nonmarital property. The payments were considered marital property.

Nebraska. Onstot v. Onstot, 906 N.W.2d 300 (Neb. 2018). On appeal, the court determined that husband failed to meet the burden of proof to show the house was a premarital asset, and therefore it was properly considered a marital asset. The provision providing spousal support will cease if wife cohabits with a partner was voided as a matter of public policy.

Westwood v. Darnell, 909 N.W.2d 645 (Neb. 2018). Retirement benefits earned during a marriage are considered to be marital property. The appellant did not meet the burden to show the retirement benefits were separate property and did not introduce evidence to show the tax outcome would have been different if the couple had filed jointly.

Rhode Island. Wu-Carter v. Carter, 179 A.3d 711 (R.I. 2018). Trial court properly found that the only marital property was the two boats. The car account was properly awarded to the wife because it was a premarital asset. The $100,000 that was transferred into the joint bank account by Wu-Carter’s parents was not subject to be equitably distributed because it was for immigration purposes only. Any money in the wife’s bank account that wasn’t gifted or loaned was subject to distribution upon divorce. Counsel fees would not be awarded to the husband because each party admitted that they supported themselves and had been living independent financial lives even through the marriage. Husband clearly had enough money in assets and in loose cash to pay for his counsel fees without undue burden on him.

South Dakota. Ahrendt v. Chamberlain, 910 N.W.2d 913 (S.D. 2018). During a divorce proceeding, the court held that all property previously held separately was marital property and divided the property equitably. Upon distribution, the wife was ordered to pay an equalization payment of which she appealed. The court used the appropriate factors to determine whether the property was marital or nonmarital. The court found that the husband actively contributed to the assets that allowed the wife to live a comfortable lifestyle. Even though the property was held separately, each spouse financially contributed to the assets, and without a prior agreement, the property is to be deemed marital.

Giesen v. Giesen, 911 N.W.2d 750 (S.D. 2018). Husband challenged the valuation of his three business interests, the valuation of a bank account on a date other than the date of divorce, and the decision to recapture into the marital estate the value of home improvements made to a third party’s rental property. Husband’s accountant used a method in which the husband and the accountant agreed on the valuation methods to be performed, which was problematic because the wife’s accountant was free to use any method he chose. The court will only review valuation issues for clear erroneous facts and uses the date of the divorce in determining the valuation of property. The trial court did not err. The court awarded the wife appellate attorney fees.

Osdoba v. Kelley-Osdoba, 913 N.W.2d 496 (S.D. 2018). Husband challenges the inclusion of wife’s student debt in property distribution when the debt was acquired before the marriage. South Dakota is an all property state, meaning all property is marital despite who holds title. If a spouse did not contribute to the asset, it can be held as nonmarital property. However, the couple was living together prior to marriage and made the decision together to put off paying the loans in order to spend wife’s income on other marital necessities. This benefited the husband. The court’s requirement to annually release his medical and counseling statements in order to receive alimony was an abuse of discretion to require a party to waive physician-patient confidentiality.

XVII. Torts

Hawaii. Castro v. Melchor, 414 P.3d 53 (Haw. 2018). Woman sued the state of Hawaii and the correctional officers at the local prison after she was forced to the ground while she was seven months pregnant. The altercation and the subsequent failure of medical personnel to provide her with treatment caused the stillbirth of her fetus at eight months. The estate of the inmate’s fetus was able to recover hedonic damages for loss of enjoyment of life; the evidence was sufficient to support an award of money for loss of enjoyment of life. Specific evidence was not required to support damages award.

South Dakota. Cedar v. Johnson, 921 N.W.2d 178 (S.D. 2018). Former husband filed an action for alienation against former wife’s paramour seeking compensatory and punitive damages for causing the end of his marriage. The trial court ruled in favor of paramour and ordered summary judgment; former husband appeals. Whether judgment as a matter of law was warranted is reviewed de novo. The court views the evidence in the light most favorable to the verdict or to the nonmoving party; then it must determine whether the evidence supports the motion, without assessing the validity of the evidence. If sufficient evidence exists so that two reasonable minds could differ, then judgment as a matter of law is not appropriate. There are three elements to prove alienation of affections: (1) wrongful conduct of the defendant with specific intent to alienate one spouse’s affections from the other spouse (such intent may develop at any point during the adulterous relationship); (2) loss of affection or consortium; and (3) a causal connection between such conduct and loss. To award damages, there must be enough evidence to place an economic value. Generally, juries decide the value of the damages. The court held that the circuit court erred in not submitting the evidence to the jury to determine the value of the damages. Johnson argues the court erred in not granting summary judgment in regard to liability and causation. On a claim for alienation of affections, the plaintiff must show the defendant’s wrongful conduct was performed with the specific intent to alienate one spouse’s affections from the other spouse.

Richardson v. Richardson, 906 N.W.2d 369, 380 (S.D. 2017). Intent can be developed at any time during the relationship. When evaluating the evidence in favor of the nonmoving party, a jury could determine that the paramour acted intentionally. Finally, the court is prevented from considering a statute’s validity unless it conflicts with legislative intent or presents a constitutional question. In which paramour made no such claim.

Tennessee. Nelson v. Myres, 545 S.W.3d 428 (Tenn. 2018). A surviving spouse is not disqualified from bringing a suit for wrongful death even if spouse caused the death due to negligence. The wrongful death statute clearly and unambiguously gives the surviving spouse the right to bring suit.

Utah. Mower v. Baird, 422 P.3d 837 (Utah 2018). In father’s action against his child’s therapist for medical malpractice and negligence, the court held that a therapist owes a traditional duty not to affirmatively act in a manner that recklessly causes physical harm, and that a therapist has a duty to refrain from recklessly giving rise to false memories or fabricated allegations of sexual abuse perceived by their minor patient.

Vermont. Sheldon v. Ruggiero, 202 A.3d 241 (Vt. 2018). DCF reviewers do not have duty, under mandated-reporter statute in effect at time of review, to re-report earlier suspicions. A reviewer is not subject to liability for negligence based on reviewer’s status as mandatory reporter, and a reviewer is not subject to liability for negligence based on theory of negligent undertaking, even if he undertook a private investigation into the question of abuse or neglect that caused the initial harm.

Washington. H.B.H. v. State, 429 P.3d 484 (Wash. 2018). As a matter of first impression, DSHS is placed into a special relationship with foster children within its system, which supports recognition of a duty in tort to protect foster children from foreseeable harms at the hands of foster parents. Whether DSHS breached its protective duty to foster children, and whether breach of that duty caused their injuries, presented questions for jury to decide as a question of fact and not of law.

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