Visitation Rights in Divorce Cases

DENMAN/HIRSCHFELD Useful Case Citations

-----------------------------------------------------------------
Adapted from JUSTICE PRO SE article appearing in September
1983 issue of SINGLE DAD'S LIFESTYLE Magazine.
-----------------------------------------------------------------
EDITOR'S NOTE: The cases cited below usually involve many more 
issues than the one for which they are herein cited. The 
interpretation preceding the citation is that of Denman or other 
editor, and not necessarily an interpretation agreed upon by 
others. FOR YOUR PROTECTION, YOU MUST LOOK UP AND READ a cited 
case before you cite it in your own pleadings, to make sure that 
it is "on point" with what you are trying to do. Otherwise, you 
run the risk that the other side will look up and read your cited 
case and find something in it distinguishable from your case, or 
even usable against you.

It is usually preferable to quote in legal pleadings the 
particular pertinent wording from reading the case itself, 
followed by the volume/reporter designation/page/year citation, 
rather than to quote the general, and unofficial,  summary by 
which the cases are stated below.

Most of the cited decisions can be found in your local (and 
publicly available) county, state, city or college law library. 
If you haven't already done so in preparing your own legal 
pleadings, it is essential that you spend some time in one of 
these law libraries learning how to look up and find the cited 
cases.  There are often helpful other users of the library, or 
you can ask at the desk for a reference on how to use a law 
library.
----------------------------------------------------------------
DENMAN CITATIONS (Partial List-- for more information on 
available pro-se literature, send SASE plus $1.00 to Nat Denman, 
Box 689, Falmouth MA 02541. Nat is not a lawyer, but is a 
resource for Pro Se litigators nationwide.)
----------------------------------------------------------------


Parental rights may not be terminated without "clear and
convincing evidence" SANTOSKY V. KRAMER, 102 S.Ct. 1388 (1982)

A child has an equal right to be raised by the father, and must
be awarded to the father if he is the better parent, or mother is
not interested. STANLEY V. ILLINOIS, 405 US 645 (1972)

If custodial mother has boyfriend living with her, state can
change custody to father. JARRETT V. JARRETT, 101 S.Ct. 329

Visitation (parenting time) is a constitutionally protected right
which can be protected in federal court, even if father is in
prison. MABRA V. SCHMIDT, 356 F.Supp. 620

Custody can be awarded to father of girls of "tender years"
if mother commits perjury, and is otherwise immoral.
BEABER V. BEABER, 322 NE 2d 910.

Arguments that Joint Custody constitutes a "fundamental right"
BECK V. BECK, 86 N.J. 480, see also 23 Ariz. Law Review 785.

Mother cannot take child out of state if that prevents 
"meaningful" relationship between father and child. 
WEISS V. WEISS, 436 NYS 2d 862, 52 NY 2d 170 (1981) See also:
DAGHIR V. DAGHIR, 82 AD 2d 191 (NY 1981)
MUNFORD V. SHAW, 84 A.D. 2d 810, 444 NYS 2d 137 (1981)
SIPOS V. SIPOS, 73 AD 2d 1055, 425 NYS 2d 414 (1980)
PRIEBE V. PRIEBE, 81 AD2d 746, 438 NYS 2d 413 (1981)
STRAHL V. STRAHL, 66 AD 2d 571, 414 NYS 2d 184 (1979)
O'SHEA V. BRENNAN, 88 Misc.2d 233, 387 NYS 2d 212 (1976)
WARD V. WARD, 150 CA 2d 438, 309 P.2d 965 (Calif. 1957)
MARRIAGE OF SMITH, 290 Or.567, 624 P.2d 114 (Oregon 1981)
MEIER AND MEIER, 286 Or. 437, 595 P.2d 474 (1979), 47 Or. App.
110, 613 P.2d 763 (Oregon 1980)
All of these cases deal with preventing the custodial mother from 
taking the child out of the jurisdiction.

Ex Parte conferences, hearings or Orders denying parental rights 
or personal liberties are unconstitutional, cannot be enforced, can 
be set aside in federal court, and can be the basis of suits for 
money damages. RANKIN V. HOWARD, 633 F.2d 844 (1980); GEISINGER
V. VOSE, 352 F.Supp. 104 (1972). 

Judges' refusal to consider evidence and psychologist reports 
denies due process right to "meaningful hearing" ARMSTRONG V.
MANGO, 380 US 545, 552; 85 S.Ct.1187 (1965)

Laws and Court procedures that are "fair on their faces" but
administered "with an evil eye and a heavy hand"
(discriminatorily) are unconstitutional. YICK WO V. HOPKINS,
118 S.Ct. 356 (1886)

Federal Courts can rule on federal claims (constitutional
questions) involved in state divorce cases and award money
damages for federal torts or in diversity of citizenship
cases involving intentional infliction of emotional distress by
denial of parental rights, "visitation", as long as the Federal
Court is not asked to modify custodial status.
LLOYD V. LOEFFLER, 518 F.Supp 720 (custodial father won $95,000
against parental kidnapping wife)
FENSLAGE V. DAWKINS, 629 F.2d 1107 ($130,000 damages for
parental kidnapping)
KAJTAZI V. KAJTAZI, 488 F.Supp 15 (1976)
SPINDEL V. SPINDEL, 283 F.Supp. 797 (1969)
HOWARD V. KUNEN, USDC Mass CA No. 73-3813-G, 12/3/73 (unreported)
SCHWAB V. HUTSON, USDC, S.Dist. MI, 11/70 (unreported)
LORBEER V. THOMPSON, USDC Colorado (1981)
DENMAN V. VENEY, DENMAN V. WERTZ (200 pp. avail from Nat Denman 
for $35--PO Box 689, Falmouth MA 02541)

Right to jury trial in Contempt: BLOOM V. ILLINOIS, 88 S.Ct. 1477
DUNCAN V. LOUISIANA, 88 S.Ct. 1444

Contempt of Court is quasi-criminal, merits all constitutional
protections: EX PARTE DAVIS, 344 SW 2d 925 (1976)

Excessive fine on Contempt COOPER V. C. 375 NE 2d 925 (IL 1978)

Payment of support tied to visitation:
BARELA V. BARELA, 579 P.2d 1253 (1978 NM)
CARPENTER V. CARPENTER, 220 Va.299 (1979)
COOPER V. COOPER, 375 NE 2d 925 (Ill. 1978)
FEUER V. FEUER, 50 A.2d 772 (NY 1975)
NEWTON V. NEWTON, 202 Va. 515 (1961)
PETERSON V. PETERSON, 530 P.2d 821 (Utah 1974)
SORBELLO V. COOK, 403 NY Supp. 2d 434 (1978)

Child Support:
ANDERSON V. ANDERSON, 503 SW 2d 124 (1973)
ONDRUSEK V. ONDRUSEK, 561 SW 2d 236, 237 (1978; support paid by
mother to custodial father)
SMITH V. SMITH, 626 P.2d 342 (1981)
SILVIA V. SILVIA, 400 NE 2d 1330 (1980 Mass,)

Although court may acquire subject matter jurisdiction over
children to modify custody through UCCJA, it must show
independent personal jurisdiction (significant contacts) over 
out-of-state father before it can order him to pay child support.
KULKO V. SUPERIOR COURT, 436 US 84, 98 S.Ct. 1690, 56 L.Ed.2d 132
(1978); noted in 1979 Detroit Coll. L.Rev. 159, 65 Va. L.Rev. 175
(1979) ; 1978 Wash. U.L.Q. 797. Kulko is based upon INTERNATIONAL 
SHOE V. WASHINGTON, 326 US 310, 66 S.Ct. 154, 90 L.Ed 95 (1945)
and HANSON V. DENCKLA, 357 US 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)

Attorney's Fees: SAUMS V. SAUMS, 610 SW 2d 244. Attorney's fees 
only if court-appointed in contempt for non-payment of child
support. EX PARTE MCMANUS, 589 SW 2d 790 (1981)

Custody can be changed if visitation is denied. ENTWISTLE V. 
ENTWISTLE, 402 NYS 2d 213

Habeas Corpus: NGUYEN DA YEN V. KISSINGER, 528 F.2d 1194 (1975);
Unlawfully retaining noncustodial parent cannot argue change
of custody at Habeas Corpus hearing. SMART V. CANTOR, 117 Ariz. 
539, 574 P.2d 27 (1977); MCNEAL V. MAHONEY, 117 Ariz. 543, 574 
P.2d 31 (1978)

Process service in family matters must provide due process
protection. GRASZ V. GRASZ, 608 SW 2d 356 (TX 1980) 

Stay of execution by Court of Appeal protects its jurisdiction, 
not to protect Appellant's rights. PACE V. MCEWAN, 604 SW 2d 231 
(1980) Also bearing on supersedeas bond.

Justice delayed is justice denied. MAGNA CHARTA, Art.40, June 15, 
1215.

Attorney can be sued for malpractice under consumer protection 
laws. DEBAKEY V. STAGG, 605 SW 2d 631 (1980)

Money damages in federal civil rights suits need not exceed
$10,000 HAGUE V. CIO, 307 US 496. But claim under $10,000 is 
cause of dismissal of diversity of citizenship action in federal
court. DELOACH V. WOODLEY, 405 F2d 496 (1969).

Spouses can sue each other while still married for torts,
intentional and unintentional. BLUNS V. CAUDLE, 560 SW 2d 925
(TX 1978)

Judge's dismissal for no cause is reversible. FOMAN V. DAVIS, 
371 US 178 (1962)

Non-lawyers can assist or represent litigants in court. JOHNSON V. AVERY, 89 S.Ct. 747

Members of group who are competent nonlawyers can assist other 
members of group achieve the goals of the group in court without 
being charged with "unauthorized practice of law" BROTHERHOOD OF 
RAILWAY TRAINMEN V. VIRGINIA , 377 US 1; NAACP V. BUTTON, 371 US 
415 (1962); SIERRA CLUB V. NORTON, 92 S.Ct. 1561; UNITED MINE 
WORKERS V. GIBBS, 383 US 715; FARETTA V. CALIFORNIA, 422 US 806.

Pro Se (Without a Lawyer, representing self) pleadings are to be 
considered without technicality; pro se litigants pleadings are 
not to be held to the same high standards of perfection as 
lawyers. HAINES V. KERNER, 92 S.Ct. 594; JENKINS V. MCKEITHEN, 
395 US 411, 421 (1969); PICKING V. PENNA. RWY. CO. 151 F.2d 240; 
PUCKETT V. COX, 456 F.2d 233.

Federal judges can set aside or overturn state courts to preserve 
constitutional rights. MITCHUM V. FOSTER, 407 US 225 (1972) Title 
28 US Code sec. 2284.

Right to electronically record one's own conversations without 
"beep note" when life, liberty or property is threatened, or to 
preserve sanctity of home. BEABER V. BEABER, 322 NE2d 910; 18 US 
Code Sec. 2511 (d)(20) (A 200 pp collection re: right to tape 
record one's own phone conversations and use in court available 
from Denman, Box 689 Falmouth MA 02541 for $20.00 postpaid)

A conspirator is responsible for the acts of other conspirators 
who have left the conspiracy before he joined it, or joined after 
he left it; statutes of limitations tolled for previous acts when 
each new act is done. US v. GUEST, 86 S.Ct. 1170; US V.COMPAGNA, 
146 F.2d 524.

State statute of limitations is tolled (does not run) in SOME 
STATES while same action is pending in federal court; action can 
be brought in State Court  after federal court dismisses for lack 
of subject matter jurisdiction. ADDISON V. STATE, 21 Cal. 3d 313 
(1978); NICHOLS V. CANOGA IND., 83 Cal. App 3d 956 (1978) 
(Equitable tolling).

Either parent can sue for interference with parental rights. 
STRODE V. GLEASON, 510 P.2d 250 (1973); 

Prosser: HANDBOOK OF THE LAW OF TORTS (West Publ. 1955) page 682; 
CARRIERI V. BUSH, 419 P.2d 132 (1966)
SWEARINGEN V. VIK, 322 P.2d 876 (1958)
LANKFORD V. TOMBARI, 213 P.2d 627, 19 ARL 2d 462 (1950); 7 F.L.R. 2071
RESTATEMENT OF TORTS section 700A
MARSHALL V. WILSON, 616 SW 2d 934

Children must be returned to home state before child support 
payments are continued. FEUER V. FEUER, 376 NYS 2d 546 (1975)

Custody can be changed if wife is "disrespectful" of "visitation" 
order. MURASKIN V. MURASKIN 283 NW 2d 140 (N. Dakota 1979)

Wife held in contempt for denial of visitation; new judge should 
not suspend contempt order. PETERSON V. PETERSON, 530 P.2d 821 
(Utah 1974)

Wife can be held in contempt if visitation is denied ENTWISTLE 
V. ENTWISTLE, 402 NYS 2d 213 (1978)

Alimony and wive's lawyers fees are civil debts, not enforcible 
by contempt procedures, since the Constitution did away with 
debtor's prison. DAVIS V. BROUGHTON, 382 SW 2d 219. 

hrough UCCJA,