Year: 2012

Timesharing in the Digital Age: The Good and Bad

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On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Thursday, December 20, 2012.

Child custody timesharing and visitation problems can be very stressful . . . even when parents get along well. No matter how well ex-spouses and parents cooperate with each other, there’s a good chance of angry phone calls, tearful exchanges, and even knock down drag out shouting matches. That’s because the strong emotions are still there. Often these arguments are played out in front of the children.

Technology can be a great way to shield children from parents fighting, ease the pressure of face-to-face communication between parents, and also to have more meaningful timesharing when your child is with the other parent. After all, we live in a world where we have video telephones, and wouldn’t you rather see your children when they are away rather than just hear them?

The New York Times recently reported on the growing trend of relying on text, email, Skype, Facetime and other online and digital tools to help facilitate timesharing. These digital means of communicating have replaced the face-to-face confrontations of the past, and have helped – I think – to avoid many of the heated exchanges in front of the children which typically take place during divorces and even afterwards.

MOST divorced couples would probably prefer not to see each other. Ever again. But when you share custody of your children, you have to assume a certain amount of face-to-face time amid the endless back-and-forthing.

Think of the clashing summer vacation plans, the who-goes-to-Lucy’s-birthday-party, the “Max forgot his homework again” at Dad’s. And those devilish contretemps that can arise if Mom, for example, decides to keep her house kosher while Dad serves the children pork chops. Or if her new boyfriend is suddenly sleeping over on “her” nights to host the children.

But just as new technologies have helped to facilitate communication between ex-spouses and divorcing parents, the technology can be abused as well. As the New York Post reports, technology can also be a means for snooping on the other parent. Consider the one case up in New York:

Fordham law Professor Annemarie McAvoy was ordered to take away the boy’s iPhone because she was using the Apple device to pry into the father’s home – spending long stretches talking with their son via the smartphone’s FaceTime video-chat feature. The judge noted:

“I believe the mother has entered the father’s home and has taken up residence to a certain extent,” Brooklyn Supreme Court Justice Jeffrey Sunshine said.

Technology can be a double-edged sword. Not enough, and parents are forced into facing each other. And, face-to-face confrontations can be stressful and lead to arguments. Too much technology, and parents can use electronic devices to spy on the other parent or the child or worse.

A Custody Case Goes to the U.S. Supreme Court

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, December 14, 2012.

Many international child child custody cases are governed by the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. The Hague Convention is a treaty signed by the United States and 88 other members. It protects children from abduction across international lines by providing a procedure to quickly return them. But after the child has been returned, how does a parent appeal if they think the trial court got it wrong?

Most people don’t know this, but it is extremely rare to have your case heard by the United States Supreme Court. In family law cases, it is even rarer. However, the U.S. Supreme Court agreed to hear a case this term: the appeal of U.S. Army Sergeant Jeff Chafin, whose wife, Lynn, left the U.S. for Scotland with the couple’s daughter after a U.S. district court allowed it.

In Chafin, the question is whether the case is moot after the child has been returned to their country of habitual residence. Mrs. Chafin returned to Scotland with the child after a federal trial judge allowed it. The trial court determined Scotland was the child’s habitual residence. Sgt. Chafin appealed the order, claiming the U.S. was the habitual residence. The 11th Circuit Court of Appeals in Atlanta dismissed his appeal as moot. The 11th Circuit happens to be the federal appeals court governing Florida.

But appellate courts are split on whether to keep jurisdiction or dismiss them as moot. For example, the 4th Circuit in Virginia has ruled that removal of the child did not make the case moot. During oral argument before the U.S. Supreme Court, Chief Justice John Roberts Jr. I think correctly observed:

It seems to me, and I may be taking the opposite position from one of my colleagues, but the — the best thing is to hold things up briefly, so that the child doesn’t go overseas and then have to be brought back, particularly if you have situations where there can be an expeditious appeal.

Avoiding Holiday Visitation Emergencies

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On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Sunday, December 9, 2012.

For people going through child custody, or who are very recently divorced, the holidays are not always happy times. In my experience, the holiday season is a stressful one, and this year is shaping up to be no different than other years. The ringing you hear in family law firms is not sleigh bells, but telephone calls from upset clients fighting over holiday visits, winter vacation plans and gift giving. As the Washington Times reported recently:

Believe it or not, most attorneys would rather enjoy the holidays with our own families than rush into court to file emergency legal documents for stressed out clients during the season. Due to the recent court cutbacks, emergency filings are an even greater strain on everyone. This is the time to think ahead, anticipate and solve problems so you can enjoy your holiday season with minimum stress for you and your children.

Here are a few tips for parents to lower or prevent your divorce ruining your holidays or bank account:

  • Look at the timesharing schedule in your agreement or final judgment. Become familiar with specific holidays, dates and the times the kids are supposed to be with you, or the other parent.
  • Send a nicely worded confirmation email of the holiday schedule to the other parent to avoid disagreements early on.
  • Be flexible. Relatives can make special visits during the holidays, and it might be the only time of year seeing the children is possible. Fostering relationships with extended family is considered in the children’s best interest.
  • If your divorce is ongoing, spending the holidays with your soon to be ex and his or her family is way too much stress right now. After the wounds heal, think about taking the high road and sharing a holiday instead of splitting or alternating one.

A little pre-planning and communication can save you a lot of emotional and financial expense. This is a special time of the year for children. The weather has cooled, kids are on vacation, and work may have slowed for you. Try to make it the best time of year.

The End of the Starter Marriage

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, December 3, 2012.

A “starter marriage” is a marriage that ended in divorce before age 30, had no children and few assets or debts. Hollywood (California) tends to have a lot of starter marriages. The divorce rate leveled off in the 1990s – from about 50% of new marriages to about 43% currently. However, USA Today reports that a 2001 survey by the Centers for Disease Control and Prevention says 20% of divorces in first marriages now occur within five years.

Some of the risk factors for having a starter marriage:

The divorces of parents.” Parents didn’t serve as role models for staying together.

Lack of guidance from parents. Aware that they themselves had divorced, parents backed off talking about what makes marriage work.

Immaturity. Rushing to the altar.

Pressure to marry We may have a “marriage culture” that promotes “matrimania.”

Fortunately, the divorce of a Starter Marriage is much simpler and less expensive. Florida has a procedure for a simplified dissolution of marriage which people in starter marriages may be able to use. This simplified procedure may be used when:

The marriage cannot be saved;

There are no minor or dependent children, and the wife is not pregnant;

You have agreed to divide the things that you both own and owe;

No one is seeking alimony;

You have filed, or waived filing, financial affidavits;

You are willing to give up your right to trial and appeal;

You and your spouse are willing to jointly sign a divorce petition;

You and your spouse are both willing to go to the final divorce hearing;

If you do not meet these criteria, you have to file a regular petition for divorce. If you have any doubts or questions, ask a Florida board certified specialist in family and marital law.

Is Your Marriage Valid If You Phoned-in Your Vows?

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On behalf of Ronald H. Kauffman, P.A. posted in Marriage on Wednesday, November 28, 2012.

In Florida, it is pretty easy to get married and divorce. You have to apply for a marriage license, which can be issued by any county court judge or the clerk of court, and then the marriage needs to be solemnized by any ordained clergy, judge, clerk of court, or notary public.

Of course, there are a few impediments to marriage. Impediments to marriage mean the marriage won’t be recognized in Florida, which can turn a lawsuit for a divorce into an annulment. The difference can be important if alimony is in dispute. Who wants to learn they aren’t entitled to alimony because their marriage was invalid?

The impediments to marriage fall into two major categories: the lack of consent or incapacity to consent. For example, the age of consent here is 18. So, with a few exceptions, minors generally can’t marry in Florida. Then there is the Bachelor Party wedding; a Las Vegas style marriage which gets annulled because someone was too drunk to consent.

However, if you are a busy bride on the go, or a groom out of town on business, can you appear for your wedding by phone? Can you email your vows to the priest or rabbi? Is the marriage valid? Florida law is unclear, but the Washington Post reported yesterday on a Maryland case in which validity of a marriage was called into question because the husband was in the Congo during his wedding.

Noel Tshiani wasn’t at his wedding – he listened by phone in another country to the ceremony in the Democratic Republic of Congo, according to court records. After about 15 years, the Mrs. Tshiani filed for divorce. Her husband told the divorce judge that he didn’t know about the marriage. That was despite renewing their vows in church, obtaining a green card for his wife and having filed joint tax returns, according to last week’s ruling from the Court of Special Appeals. Soon, he’ll be just as divorced and responsible for alimony and child support, a Maryland court has ruled.

The court noted that the law doesn’t bar Maryland “from recognizing a ceremony where one party participates by proxy – or in the manner that occurred here – and the ceremony is valid in another jurisdiction.”

Being Friends with your Ex-Spouse Could Save Your Life!

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Tuesday, November 20, 2012.

The divorce process forces spouses against each other, to view each other with suspicion, and as enemies. Not surprisingly, good relations after the divorce seem unlikely, and future friendships seem impossible. It takes a lot to make up with the person who may have ruined your life, or who has been public enemy #1 for a year or more. But just as it takes two to marry, it takes two to make a good or bad divorce. Here are some tips to help keep good relations after the lawyers and judges are long gone. And who knows, maybe it could save your life one day:

– Never express negative sentiments about your ex in front of your children.

– Give up blame, and take responsibility for how you act.

– Be polite. Minding your P’s and Q’s is never out of line.

– Don’t ask your children to keep secrets from their other parent.

– Take the high road.

– Respect your ex.

So how could following any of these guidelines save your life? Consider the following two cases:

Case No. 1 -Su Dan, 32, of China, gave part of herself – literally – to her former ex-husband, Tian Xinbing, 39, when she donated a portion of her liver to him. Dan and Xinbing divorced in July after 10 years of marriage. Two months later, Xinbing was diagnosed with liver cancer and late-stage cirrhosis. After learning that her ex was tenth on the donor waiting list, Dan offered to donate part of her liver.

Case No. 2 – Erica Arsenault, of Massachusetts, volunteered to donate a kidney to her former mother-in-law years after her divorce. The woman made the incredible offer nearly 10 years after she divorced the woman’s son. Six weeks ago, a successful transplant operation was performed and both women are healing now. They say the whole ordeal has brought a family separated by divorce closer than ever.

Grandparent Visitation in the Bluegrass State

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On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Thursday, November 8, 2012.

Whether or not a grandparent can file a court action for visitation or child custody with their grandchildren has been a closely watched issue in every state in the country. You should know that different states have different standards for allowing grandparent visitation, and that the law is still developing.

Under current case law in Florida, grandparents can be denied visitation with their grandchild by the child’s parents. This is true even if they had what most people would consider a classic grandparent-grandchild relationship; one involving regular visits. Many grandparents complain that they are treated as little better than strangers. This is a little ironic, as Florida has one of the largest populations of the elderly, and has by far the highest proportion of elderly citizens.

In 2000, the United States Supreme Court rendered an opinion to settle the issue for the entire country in the case of Troxel v. Granville. In Troxel the U.S. Supreme Court decided that parents have a fundamental liberty interest in the care, custody, and control of their children, and that a fit parent acts in the best interests of their children. However, the court did not define the precise scope of the parental due process right, the U.S. Supreme Court itself was divided on the issue, and left certain decisions for each U.S. state to decide for themselves.

Kentucky just decided. At the end of October, and in an opinion so new it’s not even published in the official reporter yet, the Supreme Court of Kentucky ruled:

The constitutional presumption that a fit parent acts in the child’s best interest is the starting point for a trial court’s analysis. The grandparent petitioning for visitation must rebut this presumption with clear and convincing evidence that visitation with the grandparent is in the child’s best interest. In other words, the grandparent must show that the fit parent is clearly mistaken in the belief that grandparent visitation is not in the child’s best interest. If the grandparent fails to present such evidence to the court, then parental opposition alone is sufficient to deny the grandparent visitation. A trial court can look at several factors to determine whether visitation is clearly in the child’s best interest.

This is a very different standard than what grandparents in Florida have. Kentucky authorizes grandparent visitation under a basic, best interest of the child standard. Florida adheres to a tougher standard, which requires showing of a compelling state interest to allow grandparent visitation rights over the objections of fit parents. In other word, grandparents have to show some of evidence of harm to the child as a basis for awarding grandparent visitation

Big International Custody Case

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, November 2, 2012.

In a big international child child custody case, a court ruled that a child taken by her mother to New York from London may stay in New York, over the objections of the father, and despite the mother and child’s lack of legal immigration status.

In 2009 Ms. Montoya Alvarez and her daughter left London to come to live in New York. On November 10, 2010, the father filed a Petition for Return of Child under Article 2 of the Hague Convention and the International Child Abduction Remedies Act. The father wanted an order that the child be returned to London to have a British court make a custody determination.

The trial court found that the father made a prima facie case of wrongful retention under the Hague Convention. However, the court denied the father’s petition to return the child to London. The mother asserted an affirmative defense under Article 12 of the Hague Convention that the child was “now settled” in New York.

The presumption under the Hague Convention is that a child must be returned to the state from which she originally was wrongfully removed unless: (1) one year has elapsed between the date of wrongful removal and the date proceedings commence; and (2) the child is found to be “now settled in its new environment.”

The father appealed, and argued that the “now settled” defense did not apply because the one-year period in Article 12 should have been tolled until he could have reasonably located his child. He also argued that the child was not settled in New York because the child and mother lacked legal immigration status.

The Second Circuit Court of Appeal held that (1) equitable tolling does not apply to the one-year period in the “now settled” defense and (2) a child’s immigration status should not be given controlling weight in determining whether the child is “now settled.”

The case makes it harder for foreign parents to win an international custody dispute. The Second Circuit’s Lozano v. Alvarez opinion can be read here.

Bleeding Grandparent Visitation Rights

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On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Monday, October 29, 2012.

In order to educate the public, and shamelessly promote myself, I wanted to mention that my latest article, “Bleeding Grandparent Visitation Rights” is now available for download at the Florida Bar’s website. The article was printed in the September/October 2012 issue of the Florida Bar Journal. Here’s a brief abstract:

Grandparent rights to visit their grandchildren over the objections of fit parents do not exist in Florida . . . or so we thought. Floridians who are activated, deployed, or temporarily assigned to military service can now designate to grandparents their timesharing rights over the objections of a fit parent. The article briefly examines the history of grandparent visitation rights in Florida, the U.S. Supreme Court’s decision inTroxel v. Granville, 530 U.S. 57, 97 (2000) and the recently enacted Florida Statute §61.13002(2) in light of Florida and U.S. Supreme Court cases.

Although the statute may not pass constitutional muster, Florida may have found constitutional ways to promote grandparent visitation. For example, Chapter 751 authorizes concurrent custody to grandparents with custody, and voters adopted the “Granny Flats” amendment to the Florida Constitution, which provides tax incentives for constructing living quarters for grandparents.

FYI, the title is derived from the 19th Century Kansas border wars (the statute in question impacts military divorces) the pain associated with grandparent visitation cases, and how grandparent child custody have historically spread into family law.

Grandparent visitation rights are an especially sensitive topic in the very emotional area of marital and family law. Hopefully, the article answers some questions many of you may have about grandparent visitation rights in Florida.

Same Sex Marriages, DOMA, and Taxes

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On behalf of Ronald H. Kauffman, P.A. posted in Domestic Partnerships on Wednesday, October 24, 2012.

Death and taxes impact everyone, gay or straight. Recently, the issues of homosexuality, same sex marriage and divorce have been in the news, especially with the presidential debates. Whatever side of the debate you may find yourself, have you ever asked whether homosexuals should be taxed differently? When asked that way, the question sure sounds unconstitutional.

In 1963, Edie Windsor met her late-spouse, Thea Spyer, in New York City. They entered into a committed relationship, and lived together in New York. In 1993, they registered as domestic partners in New York City when it became available. In 2007, as Spyer’s health began to deteriorate, they decided to marry in Canada – which permitted gays and lesbians to marry. Two years later, Spyer died, leaving her estate to Windsor.

The unlimited marital deduction is one of the major deductions in determining a taxable estate. There is no limit to the amount of the marital deduction, so a married person can potentially eliminate estate taxes by leaving the entire estate to her surviving spouse. However, the Defense of Marriage Act, or DOMA, prohibits federal recognition of same-sex marriages. Because of the operation of DOMA, Windsor did not qualify for the unlimited marital deduction, and was required to pay $363,053 in federal estate tax on Spyer’s estate.

So, in addition to losing her spouse, and facing the prospect of living her remaining years alone, Windsor now faced a $363,053 federal tax bill that married heterosexual couples do not have to pay. In 2010, Windsor commenced a lawsuit seeking a refund of the federal estate tax levied on Spyer’s estate and a declaration that DOMA violates the Equal Protection Clause of the Fifth Amendment.

Last week in Windsor v. United States, the Second Circuit Court of Appeals found that DOMA’s section 3 does not pass constitutional muster. I understand that a petition for a writ of certiorari is already pending in the U.S. Supreme Court.