Davis v. Crownpoint Family Court

Opinion delivered by FERGUSON, Associate Justice. The issue of whether a Family Court may grant an alleged father custody of children in a Domestic Violence proceeding was raised in a habeas corpus proceeding. We hold that a putative father has no standing to request custody of a child and that a family court has no jurisdiction to grant custody of a child without a legal determination of paternity. On October 18, 2001, Hyrum Halloway, putative father, filed a Petition for a Temporary Protection Order alleging that Corrina Davis, mother, committed acts of domestic violence against him. The Putative father requested that he be granted custody of two minor children, ages 5 and 7. The Crownpoint Family [285] Court reviewed the petition and issued an ex parte temporary protection order granting custody of the minors to the putative father while mother was detained at the Crownpoint Public Safety facility. The putative father subsequently removed the minors from the home they shared with their mother, which she described as “the only home they have known”. The minors and their belongings were also removed from their school in Mariano Lake, New Mexico. The putative father removed the minors to Arizona and enrolled them in a school there. When Davis, the mother filed her petition on October 30, 2001, she informed this court that prior to their removal, the minors were well adjusted and thriving in school at Mariano Lake. We previously reviewed the petition and summarily granted a writ of habeas corpus. The writ of habeas corpus was grounded upon the best interests and welfare of the minors and due process considerations. We questioned whether there was a legal determination made to establish paternity so as to grant to a putative father child custody. In our habeas corpus writ, we directed the family court to decide whether it had jurisdiction to grant child custody in this matter. Respondent Honorable Irene Toledo, in SC-CV-46-or, filed with this Court her Motion to Vacate the Writ of Habeas Corpus on November 6, 2001 raising the following four (4) issues, which give us further opportunity to clarify the reasons for issuing the writ of habeas corpus: (1) whether the Crownpoint Family Court has jurisdiction to award temporary custody of the minors to the putative father; (2) whether the putative father has standing to request custody of the minors; (3) whether the mother was afforded due process by the Crownpoint Family Court when it granted custody to the putative father; and, finally (4) whether it is appropriate for this Court to substitute its own findings of fact with those of the Family Court. We will discuss the issues as they were presented. I We combine the first two issues for discussion: whether the Crownpoint Family Court has jurisdiction to award temporary custody of the minors to the putative father; and, whether the putative father has standing to request custody of the minor children. We have previously dealt with these matters in other cases by summary orders. See Wood v. Morris, No. SC-CV-13-2000 (decided February 25, 2000) and Todicheeinie v. Edsitty, No. SC-CV -56-98 (decided May 16th, 2000). Summary orders have no precedential value. Rule 22(c) of the Navajo Rules of Civil Appellate Procedure requires that, “Memoranda decisions and orders shall not be used as precedent nor cited in any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. Only opinions shall be used as precedent.” We, therefore, take it upon ourselves today to create an opinion that is not inconsistent with our views issued previously as orders to be used as precedent in paternity issues in Domestic Violence Protection Orders. We do not have the benefit of a Navajo paternity statute to resolve issues [286] of jurisdiction and proper procedures in paternity cases. In the absence of legislative action, we are forced to lay down rules to ensure fairness. A married man is presumed to be the father of his wife’s children born during the marriage and is held responsible for the rights and obligations of parenthood from the time of the birth of a child. See Davis v. Davis, 5 Nav. R. 169 (Nav. Sup. Ct. 1987). Children born out of wedlock do not have the benefit of such presumption. Until paternity is determined, putative parents are “legal strangers” to the children and cannot be granted parental rights nor made to fulfill parental obligations by a court. Mere claim of biological parenthood is not enough to entitle a parent to child custody. The best interests of a child are paramount in custody decisions and a determination of paternity. We decide today that a Navajo court lacks jurisdiction to grant a putative father custody of minors in a temporary protection order without a legal determination establishing paternity and a parent-child relationship. In this regard, not even a putative father has standing to request custody. A paternity determination is a legal precondition in granting custody to a putative parent. An alleged father named in a birth certificate does not release a Navajo Family Court from making a legal determination of paternity. While the court may apply presumption of paternity, the court should weigh all the evidence presented, including rebuttals to the presumption.1 Such factor was not considered by the court in this case. If Mr. Halloway was named in the minors’ birth certificates, he did not bother to furnish that information before the family court granted custody to him. II We further conclude that due process was not afforded to the mother when the Crownpoint Family Court granted the putative father child custody based upon the Domestic Abuse Protection Act, (DAPA), 9 N.N.C. § 1660 (A) (7) (b). When a petition is filed for a protection order pursuant to DAPA, a temporary protection order is issued ex parte without notice to the Respondent or without a hearing. Due process requires that when a temporary protection order is issued, a hearing is required within 15 days from date of issuance. The primary purpose of [287] an ex parte temporary order is to maintain status quo until a hearing can be held. In this instant the ex parte order granting the putative father custody resulted in the removal of children from their mother to another state, to another school away from the community in which they were raised. One can hardly say that the status quo was maintained. The Domestic Abuse Protection Act, g N.N.C §1660 addresses available relief. This section is divided into two. The first part, 9 N.N.C. 1660 (A), list remedies available only upon a hearing. The Second part, 9 N.N.C. § 1660 (B) also list available ex parte remedies which are temporary and require a hearing before they are made permanent. Respondent argues that in determining custody, the court shall presume that an abusive parent is unfit to have custody of the minor children. Section 1660 (A) (7)(b) of Title 9 is a two-step process. First, for this section to operate, the mother must be found abusive in a hearing and the father has the burden to prove his case. Secondly, once found abusive, the inference that the mother is unfit can be rebutted by the mother to show that she is not abusive of the children and that her abuse of others does not adversely affect them. Davis, the mother, must be given the opportunity to defend herself against the allegations of violent acts, which presumably placed her children in danger. Should Halloway, the putative father, satisfy his burden of proof that the mother did indeed commit acts of violence, 9 NNC §1660 (A) of the DAPA authorizes the granting of child custody once the mother fails to rehut the presumption.2 The finding by the court that Davis, the mother, is unfit without a hearing or without proof to the satisfaction of the court by the putative father that she committed acts of abuse, violates her due process rights.3 For these reasons, we conclude that the Crownpoint Family Court violated the mother’s due process rights by misapplying section 1660 (A) (7) (h) of the Domestic Abuse Protection Act. Ill Respondent asks whether it was inappropriate for this Court to substitute its own findings of fact with those of the family court. When this case came before this Court initially, there were no findings of fact for this Court to consider or "replace”. Our findings were based on the temporary protection order issued by the Crownpoint Family Court along with the information provided by the mother when she filed her Petition for a Writ of Habeas Corpus. If indeed, the Crownpoint Family Court did make findings prior to the granting of custody [288] to the putative father, Respondent did not provide those findings to this Court in her Motion to Dismiss the Writ of Habeas Corpus or when she asserted the inappropriateness of this Court to substitute its own findings with those of the family court. The writ of habeas corpus was in part based on the lack of findings by the family court. IV Where child custody issues are involved, the best interest and welfare of the children are important considerations. It is proper to use habeas corpus writs to address custody of children. When considering custodial rights of children in a writ of habeas corpus proceedings, the inquiry is broader than that normally involved in other habeas corpus proceedings. The child’s best interests and welfare become prime considerations even if the natural right of parents are entitled to due considerations. Roberts v. Staples, 79 N.M. 298, 442 P.2d 788 (1968). Thus even if paternity is found, in the best interest and welfare of children, a father might not he granted custody where he had not established a parent-child relationship with the children. Barber v. Barber, 5 Nav. R. 9 (Nav. Ct. App. 1984). Accordingly, we give primary considerations to the best interests and welfare of the minors in this matter. Halloway, the putative father, once given what we assume to be temporary custody of the two minors, removed them to Arizona and enrolled them in a school away from their home, community, and maternal relatives. The minors’ adjustment to home, school and community are important factors we took into consideration. Certainly, the putative father’s actions and conduct in this regard prompt suspicion and alertness to the pernicious impact upon the children. Such conduct impinges on any child-parent relationship he may have and the best interests and welfare considerations important to this Court. We conclude that his actions demonstrate possibility of his intent to hold the minors permanently which becomes a jurisdictional concern, especially where children are removed from the state in which they reside. Finally, Respondent is reminded that this Court discourages use of language which is insulting and accusatory. This Court has stated before that this is no place for charged language. Wilson v. Wilson, 3 Nav. R. 63, 65 (Nav. Ct. App. 1982). Such conduct reflects poorly on our system and poorly on practitioners who engage in such conduct. Based upon the above, we granted the Writ of Habeas Corpus and denied Respondent’s motion to vacate the writ on November 8, 2001. Footnotes [1] New Mexico has a presumption statute in Section 4-11-15 which creates a presumption where the natural father of a child acknowledges his paternity of the child pursuant to Section 24-r4-r3 NMSA 1978. A signed voluntary acknowledgment of paternity is considered a legal finding of paternity. Section 24-14-13 addresses birth registration. According to E of this section, if the mother is not married when the father signs an acknowledgment of paternity, the father’s name, date of birth and social security number shall be entered on the acknowledgment of paternity. However, the name of the father shall not be entered on the certificate of birth without the written consent of the mother and the person to be named as the father, unless a determination of paternity has been made by a court, in which case, the name of the father as determined by the court shall be entered. NMSA 1978, 2000 Replacement Pamphlet. [2] The domestic abuse law states that the family court may award either party immediate temporary custody of any minor until further ordered by the court or the court may enter a permanent custody order. 9 NNC §1660 (A)(7)(a). [3] “‘In determining custody, the court shall presume that an abusive parent is unfit to have custody of the minor children.’ 9 N.N.C. §1660 (B) (referring to 9 N.N.C. §1660 (A)(7)(b)) The Family Court deemed that Ms. Davis was an abusive parent and therefore presumed her to be unfit to have custody of the children.” Respondent’s Motion to Vacate Order, page 4, paragraph 3.