In Re Gunther – Custody During while under Court Jurisdiction – Unpublished

This case involves a child custody matter and the court’s authority to place a child while under its jurisdiction.  Pursuant to a divorce judgment, mother and father shared legal custody of their two children, with the mother having physical custody.  The children came within the Court’s jurisdiction due to a school truancy petition filed by the school district, alleging both children had missed a considerable number of school days, many of which were unexcused.

After taking jurisdiction, the trial court placed the children with father.  Mother moved for immediate return of the minor children, arguing that the trial court erred in failing to consider the established custodial environment of the children or the best interest factors under the Child Custody Act (CCA).  The motion was denied by the trial court.

On appeal, mother argued that the court should have treated the matter like a change of custody under the CCA.  The Court of Appeals engaged in a discussion of its recent opinion In re AP & BJ regarding the interplay between child custody matters and child protection proceedings.  The CoA held that while the trial court continues to exercise jurisdiction over the children through the juvenile proceedings it is charged with a duty to take measures with respect to children and adults properly within its jurisdiction, including placing the children in the home of a related adult.  If at the time the juvenile court dismisses its jurisdiction over the child it concurrently orders a change of custody, the juvenile court must abide by the procedural and substantive requirements of the CCA, including a more formal determination of the child’s best interests.

My two cents: This was a pretty straight forward decision.  While a child is within the jurisdiction of the Court as a result of a child protection proceeding or juvenile delinquency, the ordinary custodial orders are suspended and the court is vested with those powers ordinarily left to the custodial parent(s), including the authority to place the child.  The public policy behind this is sound because in an ordinary custody case, maintaining the child’s established custodial environment is favored.  When there jurisdiction under delinquency or a child protection proceeding, there has been some failure of the established custodial environment to protect the child or the public and the state must intervene.  Thus, the status quo is not favored and the approach under the CCA does not apply.

You can view or download the case here: In re Gunther

© 2009, Melinda Deel. All rights reserved.