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Case Summaries: Custody Issues

Grant of Legal Custody to Nonrelative Because of DV: The Court of Appeals affirmed the juvenile court’s judgment granting legal custody of the father’s child to a nonrelative--a friend of the child’s mother-in a child dependency proceeding, where allegations of domestic violence resulted in the issuance of a DV CPO against the father, the mother recognized that she could not care for the child at this time, and the child had a strong bond with the nonrelative. In re K. B., 2013-Ohio-858 (12th Dist., Butler, 3/11/13).

Keywords: parental rights parental unsuitability Perales domestic violence

01/15/2013

DV as Grounds for Rejecting Shared Parenting Plan: The Court of Appeals affirmed the trial court’s decision rejecting the husband’s proposed Shared Parenting Plan based on consideration of various statutory “best interest of the child” factors, including an incident of domestic violence between the husband and wife giving rise to a CPO for the wife.  Heilman v. Heilman, 2012-Ohio-5133 (3rd Dist., Harding, 11/5/12).

Keywords: domestic violence civil protection order best interests parental rights

01/15/2013

CPO Court Lacked Jurisdiction To Make Custody Determination And Child-Related Restrictions Were Unreasonable: Pursuant to the plain language of R.C. 3113.31(E)(1)(d), the domestic relations court did not have authority to make an allocation of parental rights and responsibilities in the father’s DV CPO, since the Juvenile Division of the Lake County Court of Common Pleas had previously determined the child’s custody issues.  In addition, some of the child-related restrictions on the mother and her husband—including the no-contact and stay-away restrictions and the prohibition against respondent’s entering the child’s school or school grounds—were unrelated to respondent’s offending conduct and were thus unreasonable.  The CPO on behalf of the father’s minor child should have been limited to restricting respondent from drinking alcohol in their vehicle while the child was in the vehicle, when the order was based on that conduct. Therefore, the court of appeals reversed the improper terms in the CPO and remanded the case to the trial court.  Hoyt v. Heindell, 2010-Ohio-6058 (11th Dist., Lake, 12/10/2010).

Keywords: parenting time, visitation, residential parent, domestic violence, civil protection order

Date: 3/28/11

Court in Visitation Case Not Bound by CPO: The court of appeals held that the trial court would not be found in error in custody case for failing to specifically reference its consideration of 13 of 16 statutory best-interest factors when considering the motion or for refusing to apply the doctrines of res judicata or collateral estoppel to uphold the suspension of father’s visitation rights that was in a separate CPO issued by a Franklin County court.  The Franklin County court lacked jurisdiction to consider the petition for a CPO on behalf of the children because the Washington County post-divorce decree visitation modification proceeding was already pending at the time the mother filed her CPO petition in Franklin County.  Yannitell v. Oaks, 2008 WL 5077646, 2008-Ohio-6271 (4th Dist., Washington, 11/26/08).

CPO Custody Award is Not an Initial Custody Determination:
The court of appeals, held that: (1) trial court was required juvenile court custody case to make a determination as to whether mother was a suitable parent before granting custody to grandmother, and (2) change-in-circumstances and best-interest-of-the-child tests were not appropriate because present proceeding was initial custody proceeding.  Award of custody to grandmother in a previous CPO was a temporary order, not an initial determination of custody, and therefore “parental unsuitability test” applied to subsequent custody action.  Tabler v. Myers, 173 Ohio App.3d, 657, 880 N.E.2d 103, 2007-Ohio-6219 (7th Dist., Noble, 11/14/07).

Parental Rights Terminated Because of Domestic Violence and Failure to Satisfy Case Plan: The Court of Appeals affirmed the juveniles court’s grant of permanent custody to Children Services, thereby terminating the appellant-father’s parental rights.  The father’s responsibilities under the case plans were to participate in a domestic violence education program, to complete a parenting class, to sign necessary releases, and to follow all recommendations.  However, the father failed to meet the case plan requirements, including the completion of a domestic violence program.  Therefore, the record supported the trial court’s findings that the child could not be placed with his father within a reasonable time and that an award of permanent custody to Children Services was in the child’s best interest.  In re D. N., 2008-Ohio-2614 (Second Dist., Montgomery, 7/1/08).

Keywords: backlash child welfare

Date: 10/24/08

Parental Rights Terminated Because of Child’s Exposure to DV and Alcohol Abuse:  The Court of Appeals affirmed the grant of permanent custody to Children Services of appellant-mother’s children because of the parents’ alcohol abuse and the child’s repeated exposure to incidents of domestic violence between the parents.  At least two incidents of domestic violence occurred in the presence of the children after the agency was awarded temporary custody of the children.  The report of the GAL also supported the finding that granting permanent custody to the agency is in the best interest of the children.  In re Z. R., T.M., T.R., A.M., T.M., 2008-Ohio-2586 (Second Dist., Montgomery, 5/30/08).

Keywords: backlash child welfare

Date 10/24/08

Father Awarded Custody Because of Mothers Continuing Relationship With Her Abuser

The court of appeals affirmed the modification of custody of the parties minor child from the mother to the father because of her repeated denials of visitation by the respondent and her ongoing relationship with a man who had abused her and been arrested for domestic violence. Sheppeard v. Brown, 2008-Ohio-203 (2nd App. Dist., Clark, 1/11/08).

 

Keywords: parental rights and responsibilities residential parent

Date: 3/27/2008

 

Court Properly Issued order To Protect Child Despite Conflict With Illinois Visitation order

The court of appeals affirmed the domestic relations courts denial of respondents motion to set aside a DV CPO on the grounds that the Ohio court wrongly issued a (restricted) visitation schedule that conflicted with Illinois court custody and visitation orders. The Illinois court did not properly exercise jurisdiction over the visitation determination because the child had lived in Ohio since her birth, never lived in Illinois at any point in time, and Ohio had home state custody and visitation jurisdiction. The Ohio court was thus not obliged to afford full faith and credit to the Illinois court orders. Furthermore, even if the Illinois court orders had been found to be proper in this case, the Ohio court was still within its authority to issue the initial CPO because the mere existence of visitation orders in another state does not warrant the denial of a CPO when the child is subject to the threat of violence. While the CPO effectively restricted respondents visitation with his daughter, the chief purpose of the order was to protect the child. "In following such an order, the court acted within its discretion and fulfilled its duty to protect the citizens of the state." Ashburn v. Roth, 2007-Ohio-2995 (12th App. Dist., Butler, 6/18/07).

 

Keywords: parenting time UCCJEA interstate custody conflicting orders temporary emergency jurisdiction

Date: 3/27/2008

 

Custody Changed From Mother To Father Because of DV Against Mother By Her Current Husband

The Court of Appeals ruled that the trial court did not abuse its discretion by granting the fathers motion for a change of custody of their eight-year-old son based on the mothers continued involvement with "an abuse problem-drinker who has now twice been convicted of domestic-related incidents." The child had previously been adjudicated a dependent child based on the husbands domestic violence against the mother, the husband (childs stepfather) had been convicted of domestic violence and of disorderly conduct arising from another domestic violence incident, and a Children Services worker testified at the custody modification hearing that unsupervised contact by the husband with the child "would, in fact, cause him to be concerned for the childs safety." In addition, the father was more like to facilitate visitation and companionship rights. Therefore, custody was transferred from the mother to the father because of the domestic violence being committed against her by her husband (the childs stepfather) and the childs exposure to that domestic violence. In re Gentile, 2006-Ohio-5684 (5th Dist., Stark, 10/23/06).

 

Keywords: allocation of parental rights and responsibilities residential parent custody modification

Date: 4/4/2007

 

Award of Custody Reversed Because of Improper Exclusion of DV-related Evidence

The trial court improperly sustained the husbands objections to his wifes questions used to elicit testimony from her brother and brother-in-law about incidents of alleged domestic violence by the husband against her. "We cannot conceive how domestic violence by one spouse against another could not be relevant in a determination of an allocation of parental rights and responsibilities as regarding their children." Moreover, the fact that the domestic violence was previously litigated with respect to the wifes petition for a domestic violence CPO is of no moment; the earlier hearing was not held before the judge who presided at the divorce trial, and the wife had the right to present the evidence in the context of its effect upon the children. Barry v. Barry, 2006-Ohio-5008 (8th Dist., Cuyahoga, 9/28/06)

 

Keywords: civil protection order residential parent allocation of parental rights and responsibilities relevance

Date: 4/4/2007

 

Custody Awarded To Father Despite His Commission of Act of DV Against Mother

Although the father had been convicted of disorderly conduct based on his act of domestic violence against the mother, the Court of Appeals affirmed the juvenile courts award of custody of the parties minor children to the father. Contrary to the appellant-mothers assertion, the trial court did consider the fathers "alleged history of domestic violence. However, the court also noted that the father had not since engaged in similar conduct, despite verbal altercations between the parties which could have gotten out of hand. Other "best interests of the child" factors, moreover, militated against awarding custody to the mother and in favor of awarding custody to the father. Specifically, the mother was not providing appropriate living accommodations, not supporting the daughters education appropriately, planning further disruption in educational placement, and exposing the daughter to a new boyfriend in an inappropriate manner. While the allegations of domestic violence were one factor that the trial court considered in its extent of findings of fact and conclusions of law, it clearly found that, based on consideration of all of the factors, it was in the best interest of the parties daughter for custody to be granted to the father. Horning v. Wolff, 2006-Ohio-6397 (5th Dist., Stark, 12/4/06).

 

Keywords: allocation of parental rights residential parents backlash punishing the victim

Date: 4/4/2007

 

DV May Constitute Change For Custody Modification

Occurrence of domestic violence between the mother and her girlfriend in the vicinity of the parties child negatively affected the minor child, and supported the trial courts finding that the environment in the mothers house was not safe and nurturing. Therefore, a change of circumstances warranting a change of custody occurred. The trial court did not abuse its discretion, and its judgment was affirmed. Coe v. Schneider, 2006-Ohio-440 (4th Dist., Washington, 1/30/06).

 

Keywords: residential parent, allocation of parental rights and responsibilities, children, DOMA

Date: 6/5/2006

 

Fathers DV Outweighed By Other Factors In Custody Determination

The court of appeals concluded that the trial court did not abuse its discretion in not using the fathers two-year-old domestic violence conviction as a determining factor in the custody determination in the parties divorce case. After the father entered a no contest plea in the domestic violence criminal case, the parties reconciled and had a second child. Domestic violence is not an automatic reason to deny residential parenting rights to the guilty party, and the slapping of the mother by the father in this case was not enough to overcome the "best interest" test as found by the magistrate. Hussein v. Hussein, 2005-Ohio-6399 (5th Dist., Morrow, 11/28/2005).

 

Keywords: residential parent, allocation of parental rights and responsibilities, children, DOMA

Date: 6/5/2006

 

Parental Rights Terminated Because of Failure To Complete DV and Substance Abuse Counseling

After the parents minor child was removed from their custody, Children Services devised a case plan to, inter alia, obtain domestic violence and substance abuse counseling for the parents. With respect to domestic violence counseling, "neither mother nor father felt strongly that domestic violence counseling was necessary; neither of them had completed any classes at the time of trial." The parents also failed to complete the case plan requirements for drug counseling and random drug screens. The court of appeals affirmed the juvenile courts termination of parental rights because the parents "did not complete significant aspects of the case plan objectives." In re: M.;B., Case No. 04AP-755, 2005-Ohio-986 (10th Dist., Franklin, 3/08/2005).

 

Keywords: backlash

Date: 8/22/2005

 

Parental Rights Terminated Because of Continuing Incidents of DV

During the 18;months in which this juvenile court child neglect and dependency case was pending, the mother attended programs at the battered womens shelter and completed a number of other case plan requirements. However, in terms of resolving her alcohol and domestic violence issues, there was "a marked lack of success." She, inter alia, failed to regularly attend AA meetings, continued to associate with convicted felons and substance abusers with whom she had a volatile relationship, and during the pendency of this case was involved in at least six domestic violence incidents with at least three different men, all of whom had criminal records. She even married one of those men. Therefore, the court of appeals affirmed the judgment awarding permanent custody of the children to the Children Services Board. In re: A.;W. and S.;N., Case No. 22401, 2005-Ohio-1465 (9th;Dist., Summit, 3/30/2005).

 

Keywords: backlash

Date: 8/22/2005

 

Wifes Domestic Violence Cited As Major Reason For Awarding Custody To Husband

The Common Please Court had granted the parties divorce and awarded the husband child custody. The court of appeals affirmed the child custody award, and, in doing so, highlighted an incident where the wife had repeatedly kicked her husband in the groin within an earshot of their child. This type of interaction in the presence of a child was not appropriate and a child should not be led to believe that this was the appropriate way of dealing with a perceived problem. This outburst of physical and emotional anger was also indicative of the wifes continuing mood swings due to her Bipolar Disorder. Clark v. Clark, 2004 WL 615708, 2004-Ohio-1577, No. 03NO308 (7th Dist., Noble, 3/24/2004).

 

Keywords: "residential parent","allocation of parental rights","best interest

Date: 4/1/2005

 

DV Against Wife Cited As Factor In Awarding Custody To Grandparents

The court of appeals held that the trial court did not err by finding that an award of child custody to their father would be detrimental to the child and that awarding custody to the maternal grandparents would be in the childs best interest. Awarding custody to the father would be detrimental to the child because the child had resided with his mother until she died, the child had never resided with his father, the father had committed domestic violence assaults against his wife, and the father was unemployed. Further, it was in the best interest of the child to award custody to the grandparents because they had spent a significant amount of time with the child, had actively supported the childs education, had taken the child to counseling following the mothers death, and could provide an organized home with reasonable rules. Christopher A. L. v. Heather D.R. and James R. and Bonnie R., 2004 WL 1802987, 2004-Ohio-4271, No. H-03-040 (6th Dist., Huron, 8/13/2004).

 

Keywords: "residential parent","allocation of parental rights","best interest"

Date: 4/1/2005

 

Fathers DV Was Change of Circumstances Justifying Change of Custody

The court of appeals affirmed the trial courts decision granting the mothers motion for the reallocation of parental rights and designating her as the sole residential parent. The fathers depression and his incidents of domestic violence were a change of circumstances in his life and the evidence supported the finding that the childs best interest would be reward by a change of custody. Hostetter v. Cotton, 2004 WL 1486264, 2004-Ohio-3524, No. 03CA94 (5th Dist., Licking, 6/30/2004).

 

Keywords: modification, "allocation of parental rights"

Date: 4/1/2005

 

Allowing Child To Witness DV In Home Is Insufficient Ground For Removing Child From Mother's Care

On remand from the 2nd Circuit U.S. Court of Appeals, the New York Court of Appeals, New Yorks highest Appellate Court, ruled that "exposing a child to domestic violence is not presumptively neglectful. Not every child exposed to domestic violence is at risk of impairment. A fortiori, exposure of a child to violence is not presumptively ground for removal, and in many instances removal may do more harm to the child than good." Therefore, a child welfare agency cannot remove a child from the battered mothers home merely because the child has been exposed to domestic violence. Further, the agency must, except in the most dire circumstances, obtain a court order if it wants to remove a child from the battered mothers home because she has "allowed" the child to witness domestic violence. The judge in turn cannot order removal of the child from the care or custody of the battered mother unless there is a "risk of serious harm" to the child. The court then "must balance that risk against the harm removal might bring, and it must examine factually which course is in the childs best interest." Nicholson v. Scopetta, No. 113 (New York Ct. of App. 10/26/2004).

 

Keywords: "abuse","child neglect",backlash,"unfit mother"

Date: 11/15/2004

 

Judge In CPO Case May Temporarily Allocate Parental Rights and Responsibilities Een With A Pending Divorce Action

A judge hearing a domestic violence CPO petition has jurisdiction to temporarily allocate parental rights and responsibilities even though a divorce action between the same parties is pending before another judge of the same courti.e., the Court of Common PleasDomestic Relations Division. R.C.3113.31(E)(1)(d) provides that a domestic violence CPO granted by a "court" may "[t]emporarily allocate parental rights and responsibilitiesif no "other court" has determined or is determining, the allocation of parental rights and responsibilities." Defendant contended that pursuant to R.C. 3113.31(E)(1)(d), the trial judge in the CPO case was statutorily precluded from intruding on the province of the trial judge in the divorce action regarding the allocation of parental rights, responsibilities, and visitation concerning the child, because the judge assigned to the CPO case was not the same judge assigned to the parties divorce action, even though both were judges in the Domestic Relation Division of the Common Please Court in Franklin County. Defendant argued that the term "court" as used in R.C. 31134.31(E)(1)(d) means an "individual judge" of a county Common Pleas Court, not a division of a county Common Pleas Court. However, according to both the CPO judge and the Court of Appeals, the term "court" in R.C. 3113.31 does not refer to a specific judge, but rather the Common Pleas Courts Domestic Relations Division as a whole. Wardeh v. Altabchi, 158 Ohio App.3d 325, 2004-Ohio-4423 (Franklin, 10th District, 8/24/2004).

 

Keywords: custody,"residential parent","conflicting orders",remedies,"parenting time"

Date: 11/15/2004

 

Clark v. Clark

Husband Awarded Child Custody Because of Mothers Bipolar Disorder and Resulting Domestic Abuse: As a medication that the former wife took for her bipolar disorder did not prevent her outbursts of physical and emotional anger, such as her repeatedly kicking her former husband in the groin, the trial court did not abuse its discretion in awarding her husband custody. Further, her violent behavior "in the presence of the child was not appropriate and the child should not be led to believe that this was the appropriate way of dealing with a perceived problem." Clark v. Clark, 2004-Ohio-1577, Case No. 03-N0-308 (7th Dist. Noble 3/24/2004).

 

Keywords: parenting ability,mental illness,backlash,emotional disorder

Date: 10/4/2004

 

In Re Brooks

Parental Rights Terminated Because of Domestic Violence: Because two daughters had been in the temporary custody of the county for 12 or months of a consecutive 22-month period, the trial court properly found it to be in the girls best interest that permanent custody to the county be granted. Furthermore, there was a history of domestic violence between the parents. The magistrate had found that the childrens mother had left their father several times in the past, due to his continued spousal abuse, but always returned to him. The magistrate also found that the mother did not see domestic violence as a problem that she and her husband had, despite the fact that during one instance of domestic violence witnessed by the two children a police officer responding to the scene shot their father. In another incident, the father broke the mothers nose so badly that the injury required surgery. In light of those facts, the termination of both parents parental rights was supported by clear and convincing evidence. In re Brooks, 2004-Ohio-3887, (10th Dist. Franklin 7/22/2004).

 

Keywords: removal of child,removal of children,backlash,child abuse

Date: 10/4/2004

 

New Jersey Division of Youth and Family Services v. S. S.

Cannot Find that Mother Committed Child Abuse Just Because Infant Witnessed DV: The New Jersey Superior Court, Appellate Division, reversed the trial courts decision finding a mother to have committed child abuse because she had been holding her son when she was attacked and strangled by her husband after previously having to refused to obtain a restraining order against her husband. However, there was no finding of actual or potential physical harm to the child. A court cannot assume that witnessing domestic abuse has a present or potential negative effect on the child sufficient to warrant a finding of abuse against the battered spouse. New Jersey Division of Youth and Family Services v. S. S., 2004 N.J. Super. Lexis 242 (Docket No. A-0692-03T4) (Superior Court of New Jersey, Appellate Division, 7/01/2004).

 

Keywords: backlash,removal of child,removal of children,witnessing domestic violence

Date: 10/4/2004

 

In The Matter of: Feliciah Cook, A Dependent Child

TERMINATION OF PARENTAL RIGHTS: Parents appealed the trial courts grant of permanent custody of their child to the state. The appellate court affirmed the childs removal from the home because of the fathers history of domestic violence and his continued violent and abusive conduct toward the mother, and his failure to complete parenting and domestic violence counseling. Furthermore, the court held that the childs mother failed to recognize the impact domestic violence has on the safety of her and her children, and failed to complete counseling programs or maintain stable housing, making termination of parental rights appropriate. In the Matter of: Feliciah Cook, A Dependent Child, No. 13-02-39 (Seneca, 3rd Dist., 2/27/03).

 

Keywords: permanent custody,backlash,child welfare,Children Services

Date: 1/12/2004

 

Termination of Father's Rights Because of Failure To Complete DV Program:

The CSB filed a complaint alleging the child was a neglected and dependent child. The child was determined to be dependent and neglected and was placed in the temporary custody of the CSB. The child and her half-brother were placed in the same foster home. The father was under house arrest and did not appear at the permanent hearing, but his attorney was present. The trial court granted permanent custody to the CSB. The trial court found that the father had failed to complete programs for substance abuse and domestic violence and failed to secure permanent housing. Thus, the trial court properly found that the father had not substantially complied with his case plan objectives and had failed to remedy the problems preventing the child from being returned to him. The trial court did not abuse its discretion in awarding permanent custody of the child to the CSB. In re S. S., 2003 Ohio 319; 2003 Ohio App. LEXIS 345 (Montgomery, 2nd App. Dist.).

 

Keywords: termination of parental rights, child neglect, dependency, child welfare, children services

Date: 5/16/2003

 

Custody Award To Father Reversed Because of His DV:

While both parents were fit custodians, the father had a history of domestic violence directed at the mother even though he had never posed a direct threat to the child. The child expressed a clear preference to live with her father. The appellate court held that as the record revealed years of domestic violence, which was denied by the child who witnessed it, and the child had expressed her preference to live with the abuser, the trial court erred in awarding custody to the father without first ordering comprehensive psychological evaluations to ensure that the award of custody was truly in the child's best interest. Wissink v. Wissink, 301 A.D.2d 36; 749 N.Y.S.2d 550; 2002 N.Y. App. Div. LEXIS 10623.

 

Keywords: parental rights, residential parent, custodian, allocation of parental rights and responsibilities

Date: 5/16/2003

 

Custody Awarded To Father Despite Past DV Incidents:

The granting of custody to the father was not against the manifest weight of the evidence. The evidence showed that the father had not had any incidents of domestic violence for several years, had taken classes in anger management, and had been sober for several years. Additionally, the mother had some negative parenting behavior, such as having the child sleep in the same bed with her and another man and leaving him alone in a car for 10 minutes while she went into a bar. The child had a good relationship with the father, who had a stable home and employment. Thus, there was competent, credible evidence under the Ohio Rev. Code Ann. 3109.04(F)(1) best interest of the child factors to support the trial court's award of custody. In re Mefford, 2003 Ohio 313; 2003 Ohio App. LEXIS 340 (Greene, 2nd App. Dist.).

 

Keywords: parental rights, residential parent, custodian, allocation of parental rights and responsibilities

Date: 5/16/2003

 

Domestic Violence Danger Is Reason For Declining Custody Jurisdiction:

On review, the mother contended the trial court erred by denying her motion to decline to exercise jurisdiction as an inconvenient forum under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Mont. Code Ann. 40-7-101 et seq. The Uniform Child Custody Jurisdiction and Enforcement Act, Mont. Code Ann. 40-7-101 et seq., enumerates domestic violence as one of eight factors that a Montana court must consider when determining whether it is an inconvenient forum to adjudicate child custody issues. In a case of first impression, the appellate court found that, in light of the father's high propensity for recidivism in domestic violence, the trial court could properly consider whether the mother and her children might have been better protected if further custody proceedings were held in Washington. The protection of the parties, and other factors all supported the trial court's declining jurisdiction to allow the Washington court to exercise jurisdiction. None of the jurisdictional factors enumerated by Mont. Code Ann. 40-7-108(2), militated against declining jurisdiction, and no factor outweighed the concern for the safety and well-being of the mother and the children raised by the history of the father's domestic violence. Stoneman v. Drollinger, 2003 MT 25; 314 Mont. 139; 64 P.3d 997; 2003 Mont. LEXIS 28.

 

Keywords: UCCJEA, forum

Date: 5/16/2003

 

Victims Interference With Custody Is Not An Affirmative Defense

The court of appeals ruled that the trial court erred in giving an instruction that an affirmative defense to domestic violence charges existed based on protecting the defendants legal rights to visitation with his minor children. Specifically, in a domestic violence context, the interference with custody defense would ostensibly permit a parent to physically harm another parent in any dispute regarding the visitation where the childs health or safety is conceivably at issue. Resorting to physical force is not an acceptable course of domestic conduct absent the proper degree of proof that a party or the child is in immediate danger of bodily harm pursuant to the standards for establishing self-defense or defense of others. State v. Streight, 02-LW-0412, No. 2-01-23 (Auglaize, 3rd App.Dist., 2/14/2002).

 

Keywords:

Date: 11/4/2002

 

Custody Awarded To Mother Despite Mothers DV Conviction

The court of appeals affirmed the divorce courts award of custody to the mother despite her prior conviction for domestic violence which resulted from her earlier "no contest" plea to charges of having hit her daughter with a coat hanger and threatening her with a knife. However, the daughter had at one time struck her mother in the jaw, the mother had denied the domestic violence allegations and simply pleaded "no contest" in order to "move on," and the father had been convicted of domestic violence for behavior directed at the mother. In support of its decision to name the mother the residential parent, the trial court found that she had always been the childrens primary caregiver, could spend more time at home with the children because of her work schedule, and was more likely to honor and facilitate any court-ordered visitation. Furthermore, the trial court determined that the mothers version of the domestic violence incident involving her daughter was credible, that the incident did not cause serious harm to her daughter, and that it was an isolated event which occurred in the context of ongoing marital and family disputes. Smith v. Smith, 02-LW-0159, No. 01CA0036 (Wayne, 9th App.Dist., 1/16/2002).

 

Keywords: presumption,findings

Date: 11/4/2002

 

Couples Parental Rights Terminated Because of DV and Other Factors

The juvenile court terminated the parental rights of Mother and Father because they failed to address the domestic violence in their relationship. The court of appeals affirmed. While the couple complied with their respective case plan objectives by completing a 13-week parenting class and regularly attending supervised visitations with their child, they "failed to recognize the potential for domestic violence in the home." For example, Father had not been receptive to counseling for mood or anger management and domestic violence coping skills. In re: Child of Hope and Maynard Porter, 02-LW-3803, Nos. 21080 and 21089 (Summit, 9th App.Dist., 9/18/2002).

 

Keywords: permanent custody

Date: 11/4/2002

 

Trial Court Abused Its Discretion By Disregarding Fathers DV Conviction

The court of appeals ruled that the trial court abused its discretion to the prejudice of the mother in awarding custody of the parties minor child to the father because: (1);the trial court refused to admit any evidence of the fathers mental state (displays of anger), and (2);the trial court dismissed the fathers DV conviction as an "isolated act" and placed little weight on his domestic violence. Boling v. Valecko, 02-LW-0279, No. 20464 (Summit, 9th App.Dist., 2/6/2002).

 

Keywords: presumption,findings

Date: 11/4/2002

 

Parents Mutual DV and Mothers Drug Use Warrant Termination of Parental Rights

The court of appeals affirmed the juvenile courts termination of parental rights concerning two dependent children where both parents had ongoing issues of domestic violence and the mother had used drugs. While the mother had made some effort to comply with the case plan, much of her effort began after Children Services filed its motion for permanent custody (termination of parental rights), which was months after the case plan was filed. Further, she had failed to remedy the conditions which led to the removal of the children, and her compliance was at best sporadic. In the Matter of: Maleah Colaner and Charles Colaner, 02-LW-2361, No. 2002AP030013 (Tuscarawas, 5th App.Dist., 6/18/2002).

 

Keywords:

Date: 11/4/2002

 

Mothers Shared Parenting Plan Denied and Visitation Rights Restricted Because of Boyfriends DV

The court of appeals affirmed the trial courts rejection of the mothers proposed shared parenting plan and the restrictions on her visitation rights with her children that had been imposed by the trial court in her divorce case. The trial court did not abuse its discretion where the mothers new live-in boyfriend had committed domestic violence and there was evidence of drug use in the home. The trial courts ruling was based on the safety, health, and best interests of the children. Bernard v. Bernard, 02-LW-0356, No. 00-CO-25 (Columbiana, 7th App.Dist., 1/20/2002).

 

Keywords: parenting time,companionship,joint custody

Date: 11/4/2002

 

Effects of Battering On Children

Citing studies indicating that it is detrimental to children to be placed in the custody of a parent who batters the other parent, appeals court upheld the admission of expert testimony on the battered women's syndrome in custody trial. Child's wishes were not followed, based in part upon expert testimony that children who witness abuse by one parent upon the other may have a less than desirable perception of the abused parent. Knock v. Knock, 621 A.2d 267 (Conn. 1993).

 

Keywords: impact on children, harm to children, effects on children

Date: 4/23/2002

 

Abuse Proves Unfitness

Evidence that father had long history of domestic violence against his former wife proved his unfitness to be custodial parent. Odom v. Odom, 606 S. 2d 862 (La. Ct. App. 1992); Crabtree v. Crabtree, 802 S.W. 2d 567 (Mo. Ct. App. 1991).

 

Keywords: unfit, custody factor, best interest, residential parent, parental rights

Date: 4/23/2002

 

Violence May Not Be Disregarded

Where social worker's testimony minimized extensive violence of father in the home, it was error to place custody with father. Owan v. Owan, 541 N.W.2d 719 (North Dakota 1996). Upon remand, custody was awarded to the mother, but appeals court again reversed, because trial court did not make a specific finding concerning father's allegation that mother had slapped and scratched him prior to their marriage. Owan v. Owan, 560 N.W.2d 900 (North Dakota 1997).

 

Keywords: custody factor, best interest

Date: 4/23/2002

 

Shared Parenting Rejected Because of Husbands Spousal Abuse

The trial court did not abuse its discretion in finding that shared parenting would not be in the best interests of the children based on the husbands spousal abuse. It would be "devastating for the child to be placed in the middle of such violent and hostile interaction between the parents." The court of appeals rejected the husbands contention that the domestic violence incidents did not involve the parties communications with regard to the child or did not otherwise involve the child. Kelley-Doley v. Doley, Case No. 96-L-217 (Lake 3/12/99).

 

Keywords: best interest, custody factor, parental rights, residential parent

Date: 4/23/2002

 

Custody Award To Mother Upheld Despite Occurrence of Domestic Violence In Mothers Home

The trial court did not abuse its discretion in designating the mother the residential parent and legal custodian of the parties child despite the fact that there had been incidents of domestic violence in her home between her and her son. The trial court and the court of appeals cited as mitigating factors the fact that the son was undergoing counseling, the nonoccurrence of any physical altercations in six months to one year, and the fact that the child usually was not there when the altercations occurred, as well as the mothers denial of many of the fathers alleged domestic violence claims. In the Matter of Walters, Case No. 99CA24 (Washington 4/27/00).

 

Keywords: best interest, custody factor, parental rights, residential parent

Date: 4/23/2002

 

Child Witness Suffers

A child who witnesses or experiences domestic violence suffers profound and deep harms. Custody of Vaughn, 664 N.E.2d (Mass 1996).

 

Keywords: impact on children, harm to children, effects on children

Date: 4/23/2002

 

Disruption of Relocation Outweighed By History of Domestic Violence

The Iowa Court of Appeals recognized the disruption that the mothers relocation of more than 150 miles had on the childrens lives and on their contact with a noncustodial parent, but found that it was in the best interests of the children to remain with their mother because of the fathers history of drinking and domestic violence. The court also considered as a mitigating factor the fact that the mother had relocated in part because of the fathers threats. In re Marriage of Williams, 589 N.W.2d 759 (Iowa Ct. App. 1998).

 

Keywords: flight, fleeing, flees

Date: 4/23/2002

 

Child Suffers As Victim or Spectator

"Physical force within the family is both intolerable and too readily tolerated, and a child who has been either the victim or the spectator of such abuse suffers a distinctly grievous kind of harm, particularly when the abuse is inflicted on those weaker and less able to defend themselves, almost invariably a child or a woman." Custody of Vaughn, 422 Mass. 590, 664 N.E. 2d 434 (1996).

 

Keywords: impact on children, harm to children, effects on children

Date: 4/23/2002

 

DV of Mothers Boyfriend As Custody Factor

Domestic violence that is a pervasive part of mothers life wit her boyfriend may physically endanger and emotionally harm a child, and thereby support the trial courts modification of custody and award of custody to the father. Holbrook fka Smith v. Smith, Case No. CA98-11-111 (Clermont 9/07/99).

 

Keywords: best interest, modify custody, parental rights, residential parent

Date: 4/23/2002

 

DV As Custody Factor

The court of appeals rejected father's claim that the trial court placed too much weight on his domestic violence in designating mother the residential parent of the parties' minor children. The trial court did not abuse its discretion in placing much importance on the fact that father had been convicted of domestic violence against mother which had taken place in front of the children. Butzer v. Butzer, Case Nos. 97CA0018, 97CA0021 (Wayne 1/14/98). See, also, Morris v. Morris, Case No. 1999CA00117 (Stark 1/31/00).

 

Keywords: best interest, parental rights, residential parent

Date: 4/23/2002

 

Presumption Against Batterer Custody Okay

Massachusetts' highest court has ruled that a proposed law designed to create a rebuttable presumption against awarding sole or shared custody to an abusive parent would be constitutional. If a court finds by a preponderance of the evidence that one parent has committed a pattern or serious incident of domestic abuse, the burden would shift to that parent to show that a custody award to him or her would be in the child's best interest. The state's Supreme Judicial Court issued a unanimous advisory opinion to the state legislature, which noted that similar laws had been enacted in 11 other states The court noted a "growing national awareness that children who witness or experience domestic violence suffer deep and profound harms," and said "a child's interest in being free from the effects of domestic violence is extremely significant." Opinion of the Justices to the Senate, Mass Supreme Judicial Court, Case No. 07603, 3/11/98, 24 FLR 1231, 1241.

 

Keywords: impact on children, harm to children

Date: 4/23/2002

 

Domestic Violence Against Current Wife Affects Custody

A man's domestic violence against his current wife demonstrates that he "possesses a character which is ill-suited to the difficult task of providing his young children with moral and intellectual guidance" Thus custody award to the mother was affirmed. Irwin v. Schmidt, 653 N.Y.S.2d 627, 236 A.D.2d 401 (NY 1997).

 

Keywords: parental fitness, best interest, custody factor, residential parent, parent rights, parental rights

Date: 4/23/2002

 

Duty To Report Abuse

Mother of abused children has a duty to discover and turn in husband who had been sexually abusing their children, where it was reasonably evident to the mother that such conduct was occurring. Hite v. Brown, 93 Ohio App.3d 1414 (Cuyahoga 1995).

 

Keywords: permitting abuse, failure to protect, failure to prevent

Date: 4/23/2002

 

Custody To Occasional Abuser Upheld

Father admitted hitting mother but said the incidents were provoked by the mother's extramarital affair with her current fianc鮠Trial court found occasional violence not enough to constitute a history of violence as required by statutory presumption against granting custody to a batterer. Appeals court affirmed, finding the serious consequences of curtailing parental rights militate against an expansive interpretation of the statute. Simmons v. Simmons, 640 So.2d 799 (La. App. 1995).

 

Keywords: provocation, infrequent

Date: 4/23/2002

 

Grievous Harm Not Needed To Bar Joint Custody

Under a state statute that prohibits a court from ordering joint decision-making by parents when one parent has a history of domestic violence, it is not necessary that the domestic violence acts result in grievous bodily harm or fear of such harm. Caven v. Caven, Case No. 66199-5 (Wash. Supreme Ct. 11/12/98), 25 FLR 1045.

 

Keywords: shared parenting

Date: 4/23/2002

 

Father Who Abused Child Granted Custody

A father whom the Court found had addressed his anger and violence problem through therapy was granted custody of a child he had physically abused two years prior to the custody hearing. Ricci v. Delehanty, Me. Sup. Jud. Ct., Cum 97-447 (9/10/98).

 

Keywords: treatment, intervention, rehabilitation, child abuse

Date: 4/23/2002

 

Custody Claim Not Hurt If Criminal Case Ended In Diversion

An alleged abusive father was awarded custody by the trial court. The mother appealed, claiming the trial court disregarded the criminal domestic charges filed against the father. The appeals court sustained. Though R.C. 3109.04(F)(1)(h) makes a conviction or guilty plea to domestic violence a relevant factor in determining custody, the father had entered a diversion program in the criminal domestic violence case that did not result in a conviction. Since he had not been "convicted," the domestic relations court was not required to hold the criminal case against him in the custody case. Moore v. Moore, Case No. 93 CA 114, 1994 WL 370005 (5th Dist. Ct. App., Licking, 7-11-94).

 

Keywords: required findings, 3109.04(C)

Date: 4/23/2002

 

Violence Affects Parental Fitness

Father's history of domestic violence negates biological parent's priority to custody, and triggers a best interest test in custody case between biological father and grandparents. Antoinette M. v. Paul Seth G., 202 A.D.2d 429 (1994), leave to appeal denied, 639 N.E.2d 416 (1994).

 

Keywords: custody factor, residential parent, parental rights, unfit

Date: 4/23/2002

 

Domestic Violence Not Limited To Physical Abuse

Domestic violence as a custody factor is not limited to overt acts of violence causing physical injury, but includes the "unmistakable pattern of power and control" shown by father in this Case, justifying custody award to wife. Man's pattern of psychological, sexual, and economic abuse of wife, plus threats and intimidation, shows it is in child's best interest to be in custody of mother. J.D. v N.D., 652 N.Y.S.2d 468 (NY Fam Ct Westchester Cty 1996).

 

Keywords: custody factor, residential parent

Date: 4/23/2002

 

Remote Violence Affects Custody Decision

The statutory presumption in North Dakota against custody to an abuser applies even though the violence ended years ago. Trial court erred in weighing mother's unstable living arrangements against her because her life was destabilized by the domestic violence. Without proof of rehabilitation, it is clearly erroneous for a court to conclude that a perpetrator will no longer use violence to control his intimate partners. The state supreme court decision quoted extensively from research works concerning domestic violence, and stated that children need not be direct victims of violence for statutory presumption to apply, adverse effect upon children may be presumed whenever violence is present in the household, and public policy directs that perpetrator of domestic violence is generally not a proper person to have custody of children. Heck v. Reed, 529 N.W.2d (North Dakota 1995) .

 

Keywords: impact on children, harm to children, effects on children

Date: 4/23/2002

 

All Past Violence Is Relevant

Court must consider in custody case all past events of family violence that have occurred during the marital relationship. Michelli v. Michelli, 655 So.2d 1342 (La. App. 1995).

 

Keywords: custody factor, best interest, residential parent, parental rights

Date: 4/23/2002

 

Retrial Where Abuser Awarded Custody

Despite finding that father had physically and mentally abused the mother, it awarded custody to father, in part because mother did not maintain a stable home environment. She had been hiding with the child in battered women's shelters across the country for 21/2 years. Appellate court reversed the custody order and remanded for retrial, since trial court did not have sufficient evidence from all relevant aspects of case. Bruscato v. Bruscato, 593 So.2d 838 (La. 1992).

 

Keywords: flight, fleeing, flees

Date: 4/23/2002

 

Flight With Children Is Not Abduction Under Uccja

Where wife removed children to another state where she had safe haven with her family because she feared husband was danger to herself and children, there was no abduction under Uniform Child Custody Jurisdiction Act. Emergency custody jurisdiction in refuge state was upheld. "Which state exercises jurisdiction is less important than that the courts of the involved states act together in the children's best interests." Coleman v. Coleman, 493 N.W.2d 133 (Minn 1992).

 

Keywords: fleeing, flees, UCCJA

Date: 4/23/2002

 

Primary Caregiver Factor, Not Flight From State, Is Test

Mother was awarded temporary custody during divorce and ordered to return two children from North Carolina to Ohio. She did not. Based primarily on that failure, trial court awarded custody to father. Evidence also showed that mother was primary caregiver, and that father physically abused mother in front of children, did not exercise visitation, and worked long hours. Appellate court reversed and ordered custody to mother. Her failure to return children to Ohio was not as significant as fact that mother was primary caregiver. Marshall v. Marshall, 117 Ohio App.3d 182 (Allen 1997).

 

Keywords: fleeing, flees, best interest, custody factor, residential parent, parental rights

Date: 4/23/2002

 

Use Child's Best Interest Despite Litigation Tactics

Trial court must reconsider changing custody to husband as punishment for wife's filing of a groundless protection order action. Appellate court held that a parent's questionable litigation tactic in filing for a protection order where there was little credible evidence is relevant to custody consideration only it 1) the parent willfully misused the protection process to gain a tactical advantage in the divorce proceeding, and 2) there is a nexus between the misuse of the protection process and the children's best interest at the time of the litigation. Campbell v. Campbell, 604 A.2d 33 (Maine 1992).

 

Keywords: misuse, backlash

Date: 4/23/2002

 

Flight To Avoid Domestic Abuse Is Grounds For Vacating Default Divorce and Dissolution Decrees

Courts in a number of states have vacated default divorce and custody decrees obtained by the abuser after the victim fled the state to avoid domestic violence and thus could not be served with the divorce or dissolution papers. E.g., In re Marriage of Marconi, 584 N.W.2d 331 (Iowa 1998); Hinson v. Hinson, 518 S.W.2d 330 (Mo.Ct.App. 1975); Lesly v. Lesly, 941 P.2d 451, 455-56 (Nev. 1997), overruled on other grounds; Grayley v. Grayley, 327 S.E.2d 158 (1985).

 

Keywords:

Date: 4/17/2002

 

Competing Violence

State presumption against awarding custody to the perpetrator of domestic violence may be rebutted by evidence of ongoing violence by a non-parent living in the home of the custodial parent. Kraft v. Kraft, 554 N.W.2d 657 (North Dakota 1996).

 

Keywords:

Date: 4/17/2002

 

DV By Both Parents

North Dakota law creates rebuttable presumption against awarding custody to the perpetrator of domestic violence. Where both parties commit domestic violence, the trial court must measure the amount and extent of violence inflicted by each. If not equal, statutory presumption applies only against parent who has inflicted greater harm. Court must reconsider custody award to father, who committed more acts of domestic violence, but claimed several acts were provoked by mother. Appeals court ruled that trial court cannot disregard violent behavior merely because it was instigated by nonviolent behavior. Huesers v. Huesers, 560 N.W.2d 219 (North Dakota 1997).

 

Keywords:

Date: 4/17/2002

 

Custody of Child Awarded To Non-relatives Because of Husband-fathers Domestic Violence Conviction and Other Circumstances Detrimental To Child

In this appeal, the mother unsuccessfully claimed that the trial courts determination that she was unsuitable to parent her child and that the best interests of the child warranted an award of custody to a non-relative couple (who had unsuccessfully tried to adopt the child) was against the manifest weight of the evidence. The court of appeals affirmed the trial courts finding of the mothers parental unsuitability based, in part, on the domestic violence conviction against the mothers husband. In other words, the spousal abuse directed against the mother by her husband weighed against awarding her custody of her minor son and in favor of awarding custody to the non-relative couple who had cared for the child during the previous 24 months during their unsuccessful adoption attempt. Slivka v. Sealock, Case No. 00-CA-13 (Morgan 5/18/01).

 

Keywords: stepparent, nonparent, new husband, parental rights, Perales, best interest, best interests

Date: 4/17/2002

 

No Requirement For Child To Be Abuse Victim

Lack of violence toward children does not negate statutory presumption against granting custody to parent who committed violence against other parent. Engh v. Jensen, 547 N.W.2d 929 (North Dakota 1996).

 

Keywords:

Date: 4/17/2002

 

Despite DV By Boyfriend, Custody Stays With Mother

Custody was returned to appellee despite the domestic violence by her current boyfriend. The trial court found that domestic violence existed, as did dependency with regard to the children, but that neglect and abuse had not been proven. The trial court stated that the appellee had to choose between her children and her boyfriend. Subject to the condition of a No Contact Order with the boyfriend, custody was returned to appellee. In re: Waiters/Culler Children, Case No. 2001CA00194, 2001 Ohio App. LEXIS 5726 (Stark 12/17/01).

 

Keywords: parental rights, residential parent

Date: 4/17/2002

 

Court Issuing DV CPO Need Not Consider "best Interest" Custody Factors

Since there is an affirmative duty to protect children from harm, a mothers failure to protect her child from acts of violence by the childs stepparent constituted an act of domestic violence justifying the issuance of a CPO against her; trial court had jurisdiction to issue a CPO temporarily allocating parental rights and responsibilities despite existence of an earlier divorce decree which previously allocated parental rights and responsibilities; trial court doesnt have to consider "best interest factors" when issuing temporary civil protection order against parents. Couch v. Harrison, Case No. CA2000-08-063, 2001 Ohio App. LEXIS 651 (12th Dist., Clermont, 2/12/01).

 

Keywords: parenting time, parental rights, residential parent, conflicting orders

Date: 4/17/2002

 

Murdering Mother Doesn't Warrant Parental Rights Termination

A man's act of murdering mother of his six-year old child, resulting in his incarceration for at least 30 years, does not, standing alone, establish neglect as a matter of law justifying termination of his parental rights. State ex rel. Children, Youth and Families Dept v. Joe R., 122 N.M. 1, 919 P.2d 409 (NM Ct App 1996).

 

Keywords:

Date: 4/17/2002

 

Mothers Parental Rights Terminated, In Part Because of Her Failure To Complete Domestic Violence Counseling and To Distance Herself From Her Violent Boyfriend

The juvenile court awarded "permanent custody" of a minor child to Children Services and thereby terminated the mothers parental rights, and the court of appeals affirmed. The mothers failure to complete domestic violence counseling as required by her case plan and to distance herself from her violent boyfriend were sufficient grounds to terminate her parental rights with respect to her daughter. Notably, she had told her social worker that she still loved her boyfriend, who had beaten and raped her, seriously abused her daughter, and attempted to drown their son (previously removed from her care) in a bathtub. In re: Smith, Case No. 77554 (Cuyahoga 5/17/01).

 

Keywords: child welfare, permitting abuse, custody

Date: 4/17/2002

 

Court of Appeals Denies Writs of Prohibition and Mandamus Sought By Wife-mother Against Sister and Domestic Relations Court

During a pending divorce action, the wife-mothers sister obtained a domestic violence civil protection order on behalf of the divorcing parties minor child and against the husband-father; it awarded custody of the child to the sister and visitation rights to the wife-mother. The trial court in the civil protection order proceeding found that the minor child had been a victim of violence by the husband-father, but had not been a victim of violence by the wife-mother. The wife-mother filed a complaint in the court of appeals seeking a writ of prohibition to prevent the domestic relations court from exercising any jurisdiction in the underlying divorce action and a writ of mandamus to require her sister to return the child to her custody. The court of appeals dismissed the wife-mothers complaint for prohibition and mandamus, noting that the domestic relations court "was not patently and unambiguously without jurisdiction," and that the wife-mother possessed an adequate remedy at law through an appeal of the domestic violence civil protection order. Martin v. Fisher, Case No. 78933 (8th Dist., Cuyahoga, 4/17/2001).

 

Keywords: relatives, nonparent, best interest, permitting abuse

Date: 4/17/2002

 

Shared Parenting Rejected Because of Fathers Potential For Spousal Abuse

The court of appeals affirmed the divorce courts dismissal of the husband-fathers motion for shared parenting because of his "potential for domestic violence and spousal abuse." The wife-mother had testified that she did not believe that shared parenting would ever work and she related incidents of physical and verbal abuse against her by the husband-father, including death threats. The husband-father had also acted belligerently toward her during the hearing, making harassing comments and reverting to name-calling. Evans v. Evans, Case Nos. 00AP-1459, 00AP-1466 (Franklin 9/20/01).

 

Keywords: residential parent, parental rights, custody, best interest, best interests

Date: 4/17/2002

 

Custody order Reversed Because It Failed To State Necessary Findings of Fact Under R.c. 3109.04(c)

The court of appeals reversed and remanded the trial courts order granting residential parent status (custody) to the husband-father because the trial court abused its discretion and erred as a matter of law in failing to conduct the requisite analysis and to make the required findings of fact under R.C. 3109.04(C). That statute requires that a court, whenever it awards custody to a parent convicted of domestic violence or awards shared parenting in a case where one of the parents has been convicted of domestic violence, makes specific written findings to support its determination that it is in the best interest of the child to award custody to the parent who has been convicted of domestic violence. Smith v. Smith, Case No. 00CA0063, 2001 Ohio App. LEXIS 2294 (Wayne 5/23/01).

 

Keywords: parental rights, residential parent, best interest, best interests

Date: 4/17/2002

 

Custody of Minor Daughter Awarded To Husband-father Despite Allegations of Domestic Violence

The trial courts award of the parties minor daughter to the abusive husband-father in a divorce action was upheld by the court of appeals. The wife-mother claimed in her appeal that the trial court failed to consider the husband-fathers abusive behavior toward her. But the court of appeals noted that there was a conflict of evidence as to most of the allegations of domestic violence. The husband-father admitted hitting the wife-mother once during their marriage, but denied holding a gun to her head, giving her black eyes, or pushing her to the ground. He also indicated that their altercations were more in the nature of mutual shoving and pushing matches and that at times he would "bear hug" her to keep her from swinging at him. Moreover, the record and the trial courts opinion indicated that in making its determination of the best interests of the child the trial court considered the evidence relating to the allegations of abuse, but concluded that much of the evidence of abuse was not credible. It is not an abuse of discretion to credit one partys version of events over anothers when there is competent, credible evidence to support the conclusion. Carr v. Carr, Case No. 00CA26 (Washington 5/18/01).

 

Keywords: parental rights, residential parent, best interest, best interests

Date: 4/17/2002

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