Problem 1 LEGAL RESEARCH AND WRITING Part A: Understanding a Citation to a Case Case 7.2 on the web and (pages 216218) in your textbook is Doran v. Doran, 2003 PA Super 129, 820 A.2d 1279 (2003). The Superior Court of Pennsylvania, in deciding that case, applied a rule relating to the presumption of paternity that was stated in a prior case, Fish v. Behers, 559 Pa. 523, 741 A.2d 721, 723 (Pa. 1999). What was the rule from Fish v. Behers that the Superior Court applied in Doran? Part B: Briefing a Case Now read Strauser v. Stahr, 556 Pa. 83, 726 A.2d 1052 (Pa. 1999), reprinted as Exhibit 2 on pages 1122 and on the web. Write a brief of the case. Your brief should address the following issues: 1. Who were the parties to the case? 2. What was the decision of the trial court that was being appealed? 3. Who prevailed in the trial court? 4. What issues did the trial court address in making its decision? 5. How did the trial court decide those issues? 6. Who prevailed in the appeal? 8. What was the Supreme Courts reasoning in reaching its decision? Keep in mind that a case brief is supposed to be a relatively short summary of the case being briefed. The best case brief addresses all of the necessary issues without excessively detailed explanation, and without adding unnecessary detail. The courts opinion in Strauser v. Stahr is slightly more than 4,000 words. Its possible to write a complete brief of the case in fewer than 400 words. Your brief should not be longer than 700 words. Provide a word count of your brief along with your answer. There are several different ways to format a case brief. For this exercise, you arent required to use any particular format. If you choose to break your brief into sections that have headings, the headings should be counted in your word count. PROBLEM 2: CRITICAL THINKING Read Paralegal Application 8.5 on pages 285286 of your textbook. Paralegal Application 8.5 sets forth some of the key facts that were at issue in a real custody case in Oregon. In that case, a grandmother had informally taken custody of her grandchildren, while her daughter (the childs mother) and the childs father were unable to care for the children due to problems with drugs and criminal convictions. The childs father later sought custody of the children, and the grandmother intervened in that custody proceeding pursuant to Oregon Statute ORS 109.119, asking the court to deny custody to the father and make her informal custody of the children permanent. Oregon Statute ORS 109.119 provides a set of five factors that courts consider in deciding whether someone (like the grandmother) who is not a legal parent but who has a significant relationship with the child should be given custody instead of the legal parent (like the father). These five factors are set forth in Paralegal Application 8.5 (pages 285286) as factors A through E. To help you understand the legal issues involved, an extract of the statute is provided as Exhibit 3 on pages 2324. As in Paralegal Application 8.5, the five relevant factors in ORS 109.119 are lettered A through E (in section 4(a) of the statute). For the purposes of this problem, the legal parent mentioned in the five factors is the father, the petitioner is the grandmother, and the relief mentioned in factor C is an order granting custody to the grandmother. Using the facts described in the fact pattern, write a brief memo, not more than three pages, explaining how you believe each of the factors A through E cited in the Paralegal Application favor granting custody to the father or to the grandmother. Be sure to identify the facts from the fact pattern that are relevant to each factor, and why they support a particular outcome. Your textbook provides a link to the decision of the Oregon Court of Appeals in the real case. You can decide for yourself whether to read the case or not before doing this problem. Its not so important that you reach the correct conclusion, as that you explain how you think the facts of the case and the five factors relate to one another. As youve learned in this course, courts come to different conclusions about the same facts all the timethere isnt necessarily a correct answer. Exhibit 1 (Problem 1) Below is the text of the opinion in Strauser v. Stahr, 556 Pa. 83, 726 A.2d 1052 (Pa. 1999). Supreme Court of Pennsylvania. Timothy STRAUSER, Appellant, v. April R. STAHR, Appellee. Steven Stahr, Intervenor. Argued Nov. 17, 1998. — March 30, 1999 Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ. Michael H. Sholley, Vincent R. Mazeski, Middleburg, for Timothy G. Strauser. Orris C. Knepp, III, Lewistown, for Steven Stahr, Intervenor. Donald Zagurskie, Mifflin, for April Stahr. OPINION: The issue in this case is whether the presumption of paternity bars Timothy Strauser (Appellant) from seeking to establish, on the basis of blood tests favorable to his claim, that he is the father of Amanda Stahr, the youngest of three children born to April Stahr (Mother) during her marriage to Steven Stahr (Husband). Mother and Husband remain married, and they oppose Appellants claim. The Superior Court concluded that in such circumstances the presumption does indeed bar Appellant from asserting such claim. We affirm. On May 20, 1996, Appellant filed a custody complaint against Mother. In the complaint, Appellant asserted that he is Amandas father; that Mother had acknowledged his paternity, ensured that he enjoyed frequent visits with Amanda, and sometimes entrusted Amanda to his care; and that he, Mother, and Amanda had submitted to blood tests, the results of which disclosed a 99.99% probability that he was Amandas father. Appellant also alleged that since receiving the blood test results, Mother had interfered with his relationship with Amanda. In view of the bond that existed between him and Amanda, Appellant asserted, it would be in the childs best interests if he were granted partial custody of her. Mother filed preliminary objections in which she sought the dismissal of Appellants complaint on the basis of the presumption that Amanda was a child of the Stahrs marriage (also known as the presumption of legitimacy, or of Husbands paternity). Husband filed a petition to intervene, which was granted. He then filed preliminary objections seeking, as had Mother, to have Appellants complaint dismissed based on the presumption of paternity. He also asserted that Appellant was equitably estopped from asserting paternity, as he had not financially or emotionally supported the child. On November 25, 1996, following a hearing on preliminary objections, the trial court entered an order stating that the blood test results are hereby admitted and this matter shall be scheduled for a hearing on the issue of what is best for the subject child. In an accompanying memorandum, the trial court recited its factual findings, as follows: 1) Mother and Appellant had engaged in sex on at least one occasion around the time of Amandas conception; 2) Mother and Husband were also having sex during that period of time and were using the withdrawal method of birth control; 3) Mother and Husband were married at the time of Amandas conception and birth, remained married, and had never separated; 4) Mother had held Amanda out to others in the community as Appellants child and had promoted a relationship between Appellant and Amanda; and 5) Husband had exhibited an attitude of indifference toward Mother and the children, which attitude promoted Mothers relationship with Appellant. In its opinion and order of November 25, 1996, the trial court acknowledged that if it were to rely on the case law submitted by Mother and Husband, the case would be dismissed, as Appellant had failed to overcome the presumption of paternity by showing non-access or impotency on the part of Husband. Nevertheless, the trial court concluded that Mother, having held Amanda out to be Appellants child and having voluntarily submitted to blood testing for the purpose of determining paternity, was equitably estopped from contesting Amandas paternity. The court then decided to admit the blood test results over Husbands objection and, on the basis of those results, concluded that the presumption of legitimacy had been overcome. Accordingly, the court directed that a hearing be held on what is best for the child. Mother and Husband filed separate appeals, which were subsequently consolidated, to the Superior Court. The Superior Court concluded that, in view of the fact that the Stahr family remained intact and Husband had assumed parental responsibility for Amanda, the presumption of paternity in Husbands favor was irrebuttable. Therefore, the court reasoned, the blood test results should not have been admitted into evidence. The court reversed the trial courts order and dismissed Appellants complaint with prejudice. We granted allocatur to consider whether the presumption of paternity applied in the present case. The presumption at issuethat a child born to a married woman is the child of the womans husbandhas been one of the strongest presumptions known to the law. [Footnote 1] John M. v. Paula T., 524 Pa. 306, 312-13, 571 1380, 1383(Pa.), cert. denied, 498 . 850, 111 . 140, 112 107 (1990); Cairgle v. American Radiator & Standard Sanitary Corp., 366 Pa. 249, 255, 77 439, 442 (1951). Traditionally, the presumption can be rebutted only by proof either that the husband was physically incapable of fathering a child or that he did not have access to his wife during the period of conception. Freedman v. McCandless, 539 Pa. 584, 591, 654 529, 532 (1995); Jones v. Trojak, 535 Pa. 95, 105, 634 201, 206 (1993); John M., 524 Pa. at 313-14, 571 at 1384; Cairgle, 366 Pa. at 255, 77 at 442. Thus, it has been held that, where the presumption applies, blood test results (existing or potential) are irrelevant unless and until the presumption has been overcome. Jones, 535 Pa. at 105, 634 at 206. It has also been held that, in one particular situation, no amount of evidence can overcome the presumption: where the family (mother, child, and husband/presumptive father) remains intact at the time that the husbands paternity is challenged, the presumption is irrebuttable. Freedman, 539 Pa. at 592, 654 at 533; Coco v. Vandergrift, 416 . 444, 448, 611 299, 301 (1992). This is such a case. Nevertheless, Appellant contends that the presumption of paternity is inapplicable. Citing this Courts plurality opinion in Brinkley v. King, 549 Pa. 241, 701 176 (1997), Appellant argues that the presumption will no longer be applied automatically, but only where such application will further the policy on which the presumption is based. That policy is, in Appellants view, the best interests of the child. According to Appellant, application of the presumption will not promote the best interests of the child in this instance because of the unique facts of the case, including the asserted fact that Mother and Husband, although married, do not enjoy the traditional marriage and family unit. Appellant also contends that Mother and Husband are estopped by their own conduct from invoking the presumption of paternity. Brinkley concerned the paternity of Lisa Brinkleys daughter, Audrianna. Although Audrianna was conceived during Lisas marriage to George Brinkley, Lisa, according to her own testimony, was not having sexual relations with her husband during that time, but was having sexual relations with Richard King. George Brinkley moved out of the marital residence four months before Lisa was born, and the parties eventually divorced. Lisa filed a complaint for support against King and, after King denied paternity, a motion for adjudication of paternity. King responded with the assertion that Lisa was precluded from claiming that he was Audriannas father because she had failed to rebut the presumption of her former husbands paternity. The trial court agreed, and the Superior Court affirmed. This Court granted allocatur in order to review the way in which the presumption of paternity functions in Pennsylvania law. Id. at 246, 701 at 178 (footnote omitted). In the lead opinion, the plurality (Chief Justice Flaherty, joined by Justice Cappy) set forth the fundamentals of the law of presumptive paternity, as summarized above. Among these fundamentals was the principle that the presumption is irrebuttable when a third party seeks to assert his own paternity as against the husband in an intact marriage. Id. at 248, 701 at 179. The public policy in support of the presumption, the plurality explained, was the concern that marriages which function as family units should not be destroyed by disputes over the parentage of children conceived or born during the marriage. Id. at 249, 701 at 180. Thus, [t]hird parties should not be allowed to attack the integrity of a functioning marital unit, and members of that unit should not be allowed to deny their identities as parents. Id. (footnote omitted). Having summarized the controlling principles, the plurality articulated a framework by which those principles should be applied: [T]he essential legal analysis in these cases is twofold: first, one considers whether the presumption of paternity applies to a particular case. If it does, one then considers whether the presumption has been rebutted. Second, if the presumption has been rebutted or is inapplicable, one then questions whether estoppel applies. Estoppel may bar either a plaintiff from making the claim or a defendant from denying paternity. If the presumption has been rebutted or does not apply, and if the facts of the case include estoppel evidence, such evidence must be considered. If the trier of fact finds that one or both of the parties are estopped, no blood tests will be ordered. Id. at 250, 701 at 180. This analysis, as the plurality recognized, begs the question of when the presumption was to be applied. The pluralitys answer, taking into account the dramatic changes in the nature of male-female relationships that had occurred since the presumption was created, was that the presumption of paternity applies in any case where the policies which underlie the presumption [namely, the preservation of marriages], would be advanced by its application, and in other cases, it does not apply. Id. at 250-51, 701 at 181 (footnote omitted). Thus, the plurality reasoned, the presumption did not apply in the case then at bar, as there was no marriage to protect. Accordingly, the Superior Courts order was vacated and the case was remanded to the trial court for a hearing on the issue of estoppel. Justice Zappala concurred in the result but expressed the view that the traditional definition of non-access was unnecessarily restrictive. Justice Nigro, who also concurred in the result, suggested that the better course of action in these cases is to allow the trial court to determine paternity on a case-by-case basis, unburdened by the obligatory application of a presumption or an estoppel theory. Id. at 253, 701 at 182 (Nigro, J., concurring and dissenting). In Justice Nigros view, the trial court should be allowed to order blood testing of both the alleged and the presumed fathers. Justice Newman, joined by Justice Castille, filed a concurring and dissenting opinion. She concurred in the view that the presumption should not apply where its purpose would not thereby be served, but also opined that, when the presumption did apply, blood tests should be available to the parties as a means of rebutting the presumption. Justice Newman agreed with the plurality that the presumption did not apply in the case before the Court, but did not agree that the case presented a question of estoppel. Accordingly, she was of the view that the case should be remanded for blood testing of Lisa, Audrianna, and King to finally resolve the issue of Audriannas father. Id. at 269, 701 at 190 (Newman, J., concurring and dissenting). Although the several opinions in Brinkley reflect the criticism that has been directed toward the presumption of paternity in recent years, Appellants reliance on that decision is unavailing. In the present case, the marriage into which Amanda was born continues. Indeed, despite the marital difficulties that they have encountered, Mother and Husband have never separated. Instead, they have chosen to preserve their marriage and to raise as a family the three children born to them, including Amanda. As this Court observed in John M., [t]here is, in short, a family involved here. A woman and a man who have married and lived together as husband and wife, giving birth to and raising [several] children, have obvious interests in protecting their family from the unwanted intrusions of outsiders (even ones who have had serious relationships with the mother, father or children). The Commonwealth recognizes and seeks to protect this basic and foundational unit of society, the family, by the presumption that a child born to a woman while she is married is a child of the marriage. Id. at 317-18, 571 at 1386 (citation omitted). Thus, the present case comes within the limited set of circumstances in which, according to the Brinkley plurality, the presumption of paternity continues to apply. In this case, moreover, the presumption is not rebuttable. [footnote 2] Appellant argues for a different result by citing the unique facts of the case. He asserts that Husband and Mothers marriage lacks love and intimacy and exists in name only; Husband and Mother have experienced conflict caused by adultery; Mother represented to others that Amanda was Appellants child; Husband suspected that Amanda was not his child; and Husband exhibited an attitude of indifference toward Mother and Amanda. In sum, Appellant asserts, Mother and Husband do not enjoy the traditional marriage and family unit. While Appellants assertions may be factual, they are not unique. To the contrary, they indicate that the marriage of Mother and Husband, like many, has encountered serious difficulties. It is in precisely this situation, as was suggested in John M., that the presumption of paternity serves its purpose by allowing husband and wife, despite past mistakes, to strengthen and protect their family. Appellants argument on this point is therefore without merit. Nor are Husband and Mother estopped, as Appellant suggests, from invoking the presumption. Estoppel in paternity actions is merely the legal determination that because of a persons conduct (., holding out the child as his own, or supporting the child), that person, regardless of his true biological status, will not be permitted to deny parentage, nor will the childs mother who has participated in this conduct be permitted to sue a third party for support, claiming that the third party is the true father. Brinkley, 549 Pa. at 248 n. 5, 701 at 180 n. 5 (quoting Freedman, 539 Pa. at 591-92, 654 at 532-33). As the plurality noted in Brinkley, the question of estoppel does not arise unless and until the presumption has been rebutted or is inapplicable? Id. at 250, 701 at 180. Here, the presumption applies and is non-rebuttable. Appellants reliance on the doctrine of estoppel is therefore unavailing. Order affirmed. Justice NIGRO files a Dissenting Opinion. Justice NEWMAN files a Dissenting Opinion in which Justice CASTILLE joins. NIGRO, Justice, dissenting. Since I believe that the trial court properly found that the blood test results disclosing a % probability that Appellant is Amandas father were admissible, I respectfully dissent. In effect, the majority concludes that the presumption of paternity automatically forecloses any consideration of the blood test results at issue here, which were voluntarily taken and all but confirm Appellants status as Amandas biological father. By rigidly applying this presumption, the majority only perpetuates the disturbing trend noted by my concurring and dissenting opinion in Brinkley v. King, 549 Pa. 241, 701 176 (1997) (plurality) (Nigro, J., concurring and dissenting). There, I observed that the strict application of the presumption doctrine has only acted as an obstacle to the discretion of the trial court to order and use blood testing of the parties, which is the single most valuable technique available to a court in determining parentage. Id. at 253, 701 at 182. As noted by the majority, my opinion in Brinkley advocates that the better approach in paternity matters would be to allow trial courts to determine paternity on a case-by-case basis, unburdened by the obligatory application of the presumption doctrine. Id. Such an approach permits a court to weigh the relevant evidence and circumstances of each particular situation, including blood test results, concerns as to the maintenance of an existing family unit and the interests of the child, in order to reach an equitable result. Id. at 254, 701 at 182. The benefits of this approach are exemplified by the circumstances of the instant case. Here, voluntary test results representing virtually conclusive evidence of Appellants paternity are available and undeniably probative of the question of who Amandas biological father is. Additionally, though Amandas mother and her husband remain married, I do not believe that their marital status should serve as a license to completely disregard a biological fathers interest in having a relationship with his child. Moreover, for medical and other reasons, it may very well be in the best interests of Amanda to know the identity of her biological father. It is simply unreasonable, in my view, to preclude the trial court from considering the interests of those involved and the evidence of the blood tests solely on the basis of a presumption that is no longer reflective of todays social reality. For these reasons, I believe the trial court properly admitted the blood test results into evidence and directed that a hearing be held on the issue of what is best for Amanda. Thus, I would reverse the Superior Court and affirm the order of the trial court. NEWMAN, Justice, dissenting. For the reasons set forth below, I respectfully dissent. While I agree that the presumption of paternity attaches to the facts of this case, I disagree that it is irrebutable. Rather, this presumption should be open to rebuttal by reliable blood test evidence. April and Steven Stahr have been married since April 4, 1992 and they continue to be married, reside together and have never been separated. The couple has three children, all born during the marriage. The custody dispute that underlies this suit involves the youngest of these three children. The record indicates that April Stahr, at one time, acknowledged that Mr. Strauser, not her husband, was this childs father and allowed Mr. Strauser frequent visits with the child. April, the child and Mr. Strauser even submitted to voluntary blood tests, which show a % probability that Mr. Strauser is the childs father. Mr. Strauser filed a complaint against April Stahr seeking partial custody of his daughter after April began to interfere with his visitation with the child. Aprils husband, Steven, intervened in the action and requested that the complaint be dismissed because of the presumption that he was the childs father. The trial court overruled Mr. Stahrs objections, admitted the blood test evidence and ordered a hearing to determine what custody arrangement was in the best interests of the child. The Stahrs filed their appeal of this determination before the trial court could hold the custody hearing. The core issues involved in this appeal are whether the trial court erred in refusing to dismiss Mr. Strausers complaint based on the presumption of paternity in favor of Mr. Stahr and whether the court erred in admitting genetic blood test evidence to rebut that presumption. In order to determine whether the presumption of paternity attaches to a particular case, we must first decide if the case properly advances the purpose of the presumption. Brinkley v. King, 549 Pa. 241, 260-61, 701 176, 185-86 (1997). Here, I agree that the presumption of paternity applies because the purpose of the presumption is indicated in the facts before usspecifically that the Stahrs marriage is currently, and at all relevant times has been, intact. Id., (Newman J. concurring and dissenting statement) (purpose of presumption is limited to preservation of the marriage). Next, we must address whether the presumption may be rebutted. Id. The Majority posits that in this case, where the marriage is intact, public policy requires that the presumption be irrebuttable. I disagree. It is generally not for this Court to make such assertions of public policy unless such policy is clear. See, ., Muschany v. United States, 324 . 49, 66, 65 . 442, 89 . 744 (1945) (public policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest); Mamlin v. Genoe, 340 Pa. 320, 324,17 407, 409 (1941) (in our judicial system the power of courts to formulate pronouncements of public policy is sharply restricted; otherwise they would become judicial legislatures rather than instrumentalities for the interpretation of the law.). Here, the Majoritys conclusion that public policy requires an irrebutable presumption in favor of Mr. Stahr is erroneous because it is in direct conflict with the plain language of the Uniform Act on Blood Tests to Determine Paternity (the Act). 23 . 5104(c). Instead, the legislature has codified the public policy of this Commonwealth and clearly and expressly provided that a court may compel interested parties to submit to blood testing, and that such blood testing can rebut the presumption of paternity. 23 5104(c) and (g) [footnote 3]. Moreover, as I stated in Brinkley: We would be both naive and remiss to perpetuate the strength of this presumption and ignore the results of reliable scientific tests; * * * Pennsylvania is fast becoming one of only a minority of states that does not accept the results of blood tests that disprove the husbands paternity to rebut the presumption. Approximately two-thirds of the states currently have statutes permitting blood tests to be considered in the determination of paternity. HOMER H. CLARK, JR., 1 THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES 340 (2d ). We should join the majority of states and accept these reliable scientific tests to rebut the presumption that a child born to a married woman is her husbands child. Brinkley v. King, 549 Pa. at 264, 701 at 188. Thus, for the reasons I have set forth here and in Brinkley, I believe that the trial court did not err in refusing to dismiss Mr. Strausers custody complaint solely on the basis of the presumption of paternity and did not err in admitting the blood test evidence. Accordingly, I would reverse the decision of the Superior Court and reinstate the decision of the trial court so that the court can conduct a hearing to determine the best interests of the child involved. *** [FOOTNOTES] 1. In John M. v. Paula T., 524 Pa. 306, 571 1380 (Pa.), cert. denied, 498 . 850, 111 . 140, 112 107 (1990), this Court noted that the designation presumption of legitimacy had outlived its usefulness, as the General Assembly had abolished the legal distinction between legitimate and illegitimate children. Id., 524 Pa. at 313 n. 2, 571 at 1383-84 n. 2 (citing 48 . 167). The Court chose to refer instead to the presumption that a child born to a married woman is a child of the marriage. Id. For the sake of 22 Family Law conciseness, we will refer in this opinion to the presumption of paternity, the paternity at issue being, of course, the husbands. 2. In her dissenting opinion, Madame Justice Newman discerns a conflict between this holding and the Uniform Act on Blood Tests to Determine Paternity, now codified at 23 . 5104, which she views as codifying the public policy that blood testing may always be employed to rebut the presumption of paternity. Such position, however, has never commanded a majority of this Court. See John M., 571 at 1385 (stating that section 6133 of the Act [now 23 . 5104(c)] does not give the putative father the right to compel a presumptive father (husband) to submit to blood tests); see also John M., 571 at 1389 (Nix, ., concurring, and joined by all others) (declaring that a third party who stands outside the marital relationship should not be allowed, for any purpose, to challenge the husbands claim of parentage). 3. Sections 5104(c) and (g) state as follows: (c) Authority for test.In any matter subject to this section in which paternity, parentage or identity of a child is a relevant fact, the court, upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved, may or, upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to the tests, the court may resolve the question of paternity, parentage or identity of a child against the party or enforce its order if the rights of others and the interests of justice so require. (g) Effect on presumption of legitimacy.The presumption of legitimacy of a child born during wedlock is overcome if the court finds that the conclusions of all the experts as disclosed by the evidence based upon the tests show that the husband is not the father of the child. Exhibit 2 (Problem 2) An Oregon statute, ORS , allows a person who is not the childs legal parent but who has a significant ongoing relationship with a child (including a grandparent) to petition the court for custody or visitation. Pursuant to the statute, the court presumes what the legal parent has decided to do concerning custody of the child is in the childs best interests. Thus, if the legal parent has refused to give custody of the child to someone else, the court presumes that the parents decision to keep custody is the correct one. Its up to the other person to prove otherwise by clear and convincing evidence (a difficult standard of proof to meet). In making the decision, the court can consider the factors that were listed in Paralegal Application , and which appear in Section 4(a) of the statute, shown below. ORS . Rights of person who establishes emotional ties creating child-parent relationship or ongoing personal relationship. (1) … [A]ny person, including but not limited to a related or nonrelated foster parent, stepparent, grandparent or relative by blood or marriage, who has established emotional ties creating a child-parent relationship or an ongoing personal relationship with a child may petition … for an order providing for relief under subsection (3) of this section. (2) (a) In any proceeding under this section, there is a presumption that the legal parent acts in the best interest of the child. *** (3) (b) If the court determines that an ongoing personal relationship exists and if the court determines that the presumption described in subsection (2)(a) of this section has been rebutted by clear and convincing evidence, the court shall grant visitation or contact rights to the person having the ongoing personal relationship, if to do so is in the best interest of the child. The court may order temporary visitation or contact rights under this paragraph pending a final order. *** (4) (a) In deciding whether the presumption described in subsection (2)(a) of this section has been rebutted and whether to award visitation or contact rights over the objection of the legal parent, the court may consider factors including, but not limited to, the following, which may be shown by the evidence: (A) The petitioner or intervenor is or recently has been the childs primary caretaker; (B) Circumstances detriment al to the child exist if relief is denied; (C) The legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor; (D) Granting relief would not substantially interfere with the custodial relationship; or (E) The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor. WRITING GUIDELINES 1. Type your submission, double-spaced, in a standard print font, size 12. Use a standard document format with 1-inch margins. (Do not use any fancy or cursive fonts.)
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