 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Rubano v. DiCenzo9/25/2000
of children born out of wedlock."
In holding that § 15-8-26 and § 8-10-3's "adults who shall be involved with paternity" clause provide two separate bases of jurisdiction for Rubano's claims, we note that we have not, as the dissent would have it, "mix together portions from the broad statutory language found in § 8-10-3 * * * with the general statutory wording found in § 15-8-26." On the contrary, as is clear from the above analysis, we conclude that these distinct jurisdictional grants provide two separate and independent jurisdictional bases for Rubano's claim. Thus, whatever "strange mix" the dissent envisions concerning these two provisions is a cocktail that it alone has shaken and stirred.
C. Superior Court Jurisdiction
Alternatively, Rubano was entitled to seek a remedy in Superior Court for DiCenzo's alleged violation of the visitation agreement. See G.L. 1956 § 8-2-13 (" he superior court shall, except as otherwise prohibited by law, have exclusive original jurisdiction of suits and proceedings of an equitable character * * *"). Before the Legislature established the Family Court, the Superior Court had exercised equitable jurisdiction over suits involving child visitation and custody. See, e.g., Hoxsie v. Potter, 16 R.I. 374, 377, 17 A. 129, 130 (1888) (concerning an award of custody by the Superior Court to a child's paternal aunt contrary to the biological mother's wishes). The Superior Court did not lose this jurisdiction after the General Assembly created the Family Court. Rather, the Family Court and the Superior Court maintain concurrent jurisdiction over such matters. See Lubecki v. Ashcroft, 557 A.2d 1208, 1211 (R.I. 1989) (holding that a contract dispute between a former husband and wife could properly reside in the Superior Court). Thus, under its general equitable powers, the Superior Court also had the jurisdictional authority to hear plaintiff's case and to decide whether to enforce the parties' visitation agreement (as it was embodied in the Family Court's order) just as it would any other such agreement. However, because in this case proceedings were initiated in the Family Court and the parties' settlement in the form of an order has already entered in that court, the Superior Court, as a matter of comity, should abstain from asserting its jurisdiction if either party should attempt to invoke it.
D. Federal Constitutional Considerations
According to the United States Supreme Court, "it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Troxel, ___ U.S. at ___, 120 S.Ct. at 2060, 147 L.Ed.2d at 56 (striking down the State of Washington's nonparental visitation statute as applied to a child's paternal grandparents because of its unconstitutional overbreadth in allowing "any person" to petition for visitation rights "at any time" subject only to a best-interests-of-the-child standard). And we acknowledge, as did the Troxel Court, that "the State's recognition of an independent third party interest in a child can place a substantial burden on the traditional parent-child relationship." Id. at ___, 120 S.Ct. at 2059, 147 L.Ed.2d at 56. But in holding, as we do, that the Family Court had jurisdiction to determine the existence of a de facto parental relationship between Rubano and the child -- a child with whom she has no biological relationship --and to enforce the biological mother's settlement agreement allowing Rubano to visit with the child, we also join with the high Court in recognizing that "persons outside the nuclear family are called upon with increasing frequency to assist in
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Rhode Island Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|