03.12.10
Published by Michael Granata | Child Custody
I can’t get enough of these standing cases. In re M.K.S.-V., 301 S.W.3d 460, Tex.App.-Dallas, 2009. Facts as reported from the case:
K.V. and T.S. met in the fall of 1997 and began living together in late 1998. The two talked about rearing a child together and in mid-2003, after the two had received counseling, T.S. became pregnant with M.K.S. through artificial insemination by a sperm donor. T.S. delivered M.K.S. on May 21, 2004 and co-parented M.K.S. with K.V. until August 3, 2005 when the relationship ended and T.S. moved out with M.K.S. Because T.S. and K.V. wanted to maintain some continuity for the child, they agreed on a schedule allowing K.V. regular access to and possession of the child. Under the agreement, M.K.S. would visit K.V. overnight once a week, alternate Sunday afternoons, and on alternate weekends beginning on Friday afternoons during the school year. During the summer, the weekend visits would sometimes start on Thursday afternoon. M.K.S. also visited K.V. on “some holidays.” This schedule began August 5, 2005 and continued until April 25, 2007 when T.S. discontinued the visits because K.V. had accessed M.K.S.’s school record against T.S.’s “directive.” The following month, K.V. filed suit seeking to be appointed joint managing conservator of M.K.S. or, in the alternative, to adopt her.
I recall this case getting some media attention because the parties were lesbian lovers. Interesting to note the Court did not mention this fact in the entire case. Unlike most cases the parties here had an actual written possession schedule they generally seemed to follow yet TS maintained that KV had no standing. The appeals court found that in this case, the possession agreement between the parties shared characteristics of a standard possession order, MKS had her own room at KV’s house, KV had toys for MKS, KV would pick the child up from school when she was sick, KV was listed as a parent at the school for pick up purposes, and similar parental duties, actions and obligations that are indicative of being a parent. The found that the record did not suggest the possession and care giving was intended to be a temporary arrangement. For these reasons the appeals court remanded the case and found error when the trial court dismissed KV’s claims. Remanded.
03.06.10
Published by Michael Granata | Child Custody, Child Support
For some reason I find these standing cases super interesting. The analysis almost always focuses on ‘what exactly makes you a parent’ is fascinating to me.
In re Y.B. 300 S.W.3d 1
Here are the facts as reported from the case: Swift and Tina Bruno have known each other for over ten years. In December of 2004, Bruno traveled to the Ukraine to adopt three girls. Bruno is the girls’ only legal parent. On April 22, 2007, Swift and Bruno married. On January 21, 2008, Swift moved out of Bruno’s house. He filed a suit affecting the parent-child relationship (“SAPCR”) on March 10, 2008. A week later, Bruno filed a plea to the jurisdiction and motion to dismiss, challenging Swift’s standing to bring a SAPCR. Conflicting testimony was presented regarding whether Swift met the requisite amount of time required to establish standing under the Family Code. The trial court granted Bruno’s plea to the jurisdiction and motion to dismiss, and awarded Bruno $4,000 in attorney’s fees. In its findings of fact and conclusions of law, the trial court found that Swift did not have actual care, control, and possession of the children for at least six months. The trial court concluded that Swift lacked standing under section 102.003(a)(9) of the Family Code to bring a SAPCR. Swift now appeals.
The majority held the Trial Court erred by dismissing the lawsuit because Swift raised a fact issue on whether he is and was in fact a parent.
Justice Rebecca Simmons filed a dissenting opinion. She felt “At best, the evidence shows Swift lived in Bruno’s home for approximately nine months. According to Swift, he would: sometimes put cereal out for the children in the morning; eat dinner with the family; drive the children to school; help with homework; take the children fishing; bath the youngest child; and the girls called him “Daddy.” Justice Simmons felt these activities are typical of those undertaken by stepparents and felt the majority’s broad interpretation of 102.003 would give almost anyone involved with children for more than six months standing to file SAPCR. Justice Simmons cites, Troxel as a parent’s fundamental right to make decisions for their children as well as In the Interest of M.J.G. 248 S.W.3d 753 where the grandparents of MJG had a heck of a lot more involvement with the children than Swift had with YB and the Motion to Strike was granted in the MJG case. Based on the evidence in this case there was no fact issue because there were no facts establishing Swift mad any decisions at all concerning the health, education and welfare under the M.J.G. standard. Seems like Justice Simmons got it right. Under the majority’s standard, almost anyone would qualify for standing because the burden to create a fact issue on this is so low.
03.06.10
Published by Michael Granata | Industry News
As reported by the ABA, the Attorney General of Texas intervened in a divorce case involving a same-sex couple. It appears the Attorney General’s position is that since Texas doesn’t recognize a same-sex marriage (from Massachusetts) it is not possible to legally end the marital relationship. Texas has a voter-approved state constitutional amendment not recognizing same-marriage and the Texas Family Code prohibits same-sex marriages or civil unions. If there is no valid legal marriage, then there would be nothing to adjudicate or determine. Stay tuned, this issue has already come up in Dallas and is headed for the Court of Appeals with probable review by the Texas Supreme Court.
03.05.10
Published by Michael Granata | Industry News
As reported by the ABA Journal
In a surprising move by a Cook County Circuit Court, a father could be held in contempt of court for taking his daughter to Church in violation of a Court Order that requires her to only be exposed to Judaism. Oral arguments are expected today.
03.04.10
Published by Michael Granata | Guest Blog
The following is a guest blog article by Dolan Law Offices:
Winter’s not quite over yet and for much of the country this season has been far from a winter wonderland. In fact, the Associated Press is reporting that 49 out of the 50 states had snow during the month of February – Hawaii being the lone holdout.
While many of us long for the warmth of summer, it is important that we remain vigilant to the dangers that winter brings with it. Until the spring flowers emerge, we should all remember the following winter safety tips to avoid serious personal injuries:
- Slow Down: whether you are driving or walking – slow down. Speed is a common reason for accidents during the winter months when feet and tires can easily give way to slippery conditions.
- Winterize Your Car: prepare your car for winter travel by having a mechanic check all of the fluids and making sure that you have the right tires on your car. A properly winterized car can avoid help you avoid accidents.
- Clean Ice and Snow from Your Vehicle: clean all of the ice and snow off of your car – including all of your windows and the hood, trunk and roof of your car. If ice or snow slips off of your car while you’re driving and hits the windshield it can cause a serious accident.
- Wear a Helmet for Outdoor Sports: a helmet can help avoid traumatic brain injuries when worn during winter sports such as skiing, ice skating and sledding. Choose a helmet that fits you well and will protect you in a fall or collision.
- Choose Safe Sledding and Skating Spots: Be careful where you choose to enjoy winter sports. If you are ice skating make sure that the ice is thoroughly frozen and safe for skating. If you are sledding be careful to avoid trees, cars, and other people.
- Be Careful with Your Snowblower: snowblowers cause serious injuries, including amputations, every year. Never leave the machine running or put your hands near the chute.
- Take Care of Your Property: sidewalks, walkways and driveways can become slippery with just a slight coating of snow, sleet or ice. Be sure to promptly remove any accumulating snow and to properly sand and salt the paved (and concrete) areas of your property so that people do not slip and fall.
We hope that these tips help keep you safe – both from injury and potential liability.
This post by Dolan Law Offices, P.C. a firm of Illinois truck accident attorneys.
