Month: September 2012

A Movie Review!

On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Sunday, September 30, 2012.

As a matrimonial attorney, I don’t much care for movies about child custody cases. I’d seen, but didn’t like, Kramer v. Kramer, Falling Down, and Intolerable Cruelty. I just don’t think custody battles make for good film. Talk to Strangers proved me wrong. You can see the trailer here.

Clients are often surprised to learn that divorce attorneys and judges don’t usually see the children in the divorce process. This means that we sometimes become immune to its impact on children. Talk to Strangers corrects this problem. It looks and feels realistic, shows you the custody evaluation process from the children’s perspective, and comes with a guide for clients. It’s a short, dramatic mockumentary of the custody process meant for its teaching value. Anyone who is involved in the process will learn something, but the movie seems to be aimed primarily at clients.

This is a good movie to watch. First of all, it’s short, coming in at around 25 minutes. Its film locations, a suburban Connecticut home and cold courthouse, make the movie very convincing. The acting is good and professional, especially the brother and older sister, who do a great job portraying the deteriorating relationship with their parents and each other. All the performances are good. In a closing scene, the parents are shown a video of themselves confidently predicting how great their children will do at the end of the process because they are going to work so hard at it. You’ll want to cry.

Tell your clients who have any interest in fighting a tough custody battle to buy this short movie first (it’s probably the cheapest way to settle a custody battle). Oh, and tell them to bring tissues.

Talk to Strangers

On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, September 21, 2012.

child custody cases are emotionally draining, and high conflict child custody cases can have a huge impact on children involved. How to lessen the impact of child custody cases on children has been a problem which lawyers, judges and every other professional in the process have long sought.

A Connecticut family lawyer, Deb Grover, who was serving as Chair of the Connecticut Bar Association’s Family Law Section had the idea to create a film to lessen the impact to children. The film is called Talk to Strangers, and was funded by the Connecticut Bar Association, and written by family law specialist Larry Sarezky and produced by Sarezky with Deborah Grover.

From the website:

Talk to Strangers is a fictional portrayal of what happens when parents divorce, and the custody of the children is in dispute. The film family, particularly the children, trudge through the intrusive and lengthy process that leads to a determination of custody. We see them in interviews with family court personnel and observe the tense and painful family interactions that take place.

If you take a minute to watch the trailer for the movie, you quickly see why this film is very different from other videos available on the subject, as it appeals to you on a strong emotional level. The trailer can be viewed here. I just ordered it, and look forward to viewing it, but here’s what others are saying:

“A must-see for parents and counsel involved in this terrible process known as custody litigation.”

– Arthur Balbirer, Esq. – past president American Academy of Matrimonial Lawyers

“…Talk to Strangers, both the film and the pocket guide, are wonderful. The voices of the children speak louder than any educational program…”

– Robin M. Deutsch, Ph.D – Children & the Law Program, Dept. of Psychiatry Massachusetts General Hospital

“This wonderful film… will provide insight and great assistance. Watch it and learn!”

– Alan Dershowitz – Harvard University Professor of Law

Gestational Surrogacy Contracts :-)

On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Thursday, September 20, 2012.

According to the Associated Press, on Sept. 19, 1982, the smiley emoticon was invented by professor Scott E. Fahlman, who proposed punctuating humorous computer messages by creating this:

๐Ÿ™‚

Which of course led to this

๐Ÿ™‚ ๐Ÿ™‚ :] =] =) :^) :?), and sadly, this ๐Ÿ™ ๐Ÿ™ :-c :-< :-[ :[ :{

Just as new technologies – such as reproductive technologies – bring new benefits, they can bring new types of child custody cases. Consider this English woman’s concerns reported in the Daily Mail:

A married woman whose husband donated sperm without her knowledge is calling for clinics to be forced to ask for a wife’s consent . . . and says the sperm should be treated as a ‘marital asset’.

Putting aside the question of whether sperm is marital property, Florida does protect surrogacy, and has comprehensive laws protecting the baby, intended parents, the egg donor and the surrogate.

For example, Florida allows commissioning couples to enter gestational surrogacy contracts in which a surrogate relinquishes her parental rights. Gestational surrogacy contracts are reviewed by courts to confirm that they are in accordance with Florida law, and for a birth certificate to be issued. But, problems can arise. Consider a recent Florida case involving lesbian partners:

Two women decided to have a baby, paid a reproductive doctor to withdraw ova from one of them, fertilize them, and implant the fertilized ova into the other partner. The procedure worked, and a child was conceived to a birth mother and a biological mother. Two years later the mothers separated, and the birth mother severed the biological mother’s contact with the child.

If the biological mom is simply an egg donor under Florida law, her parental rights are relinquished. If she isn’t a donor, she’s entitled to parental rights. So, what are the biological mom’s rights? At least in one Florida case, the biological mom was found to be entitled to her parental rights, and did not statutorily relinquish them.

The outcome in that one Florida appellate case may not be followed in other appellate districts, so a consultation with a family law expert is advised.

A Presumption of Equal Timesharing?

On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Friday, September 14, 2012.

Increasingly, clients are demanding shared custody and 50-50 child custody, meaning they want to divide the time with their children and other parent equally and have equal decision making rights. I’m also hearing calls for legislation to make joint custody and equal time sharing mandatory. The British government recently announced it is seeking to amend Section 1 of the Children Act 1989 to introduce a legal presumption of ‘shared parenting’.

When parents get along reasonably well, and live close by, an equal timesharing schedule may be in the children’s best interests. It can: foster Florida’s policy of frequent contact with parents after divorce, reduce custody litigation, spare thousands of children from being dragged into a battle between their parents, and discourage custody cases which have more to do with how much child support gets paid than timesharing.

Equal timesharing can be done in different ways: Week on/week off, 5-5-2-2 (in which a parent has the child for two weeknights then the child goes to the other parent for two weeknights, then the child goes back to the first parent for the three day weekend and the first two assigned weeknights which equals five nights.) and more. I can’t list all of the schedules possible, but an equal timesharing schedule is only limited by the parties’ willingness to be creative.

The rub of course, is creating a timesharing schedule which maximizes parent/child time, and minimizes transition troubles. While a 50/50 timesharing schedule may be desired, geographic distance, school hours, extra-curricular activities, and work schedules make equal timesharing impractical. In those cases, a more traditional timesharing schedule may be desired, and any shortfall in a parent’s timesharing can be made up during long school breaks, like Christmas and summer.

In order for an equal timesharing schedule to succeed though, the parents have to be flexible, and put the interests of the children first. This is easier said than done. Inevitably, school and extra-curricular activities – or a parent’s work commitment – are going to require the timesharing schedule to be adjusted. If parents are inflexible and unwilling to cooperate with each other, 50% timesharing can have a 0% chance.

Bad Gift Idea for a Second Marriage: A Muslim Prenup

On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Tuesday, September 11, 2012.

In an earlier post I hinted that a prenup made a fine gift for a second marriage. But not all prenuptial agreements are created equal. An interesting case out of Kansas City refused to enforce a Muslim divorce. News of the case comes from The Volokh Conspiracy.

The Muslim premarital agreement is known as a mahr agreement. Mahr agreements are negotiated before the marriage between the groom and the bride’s family. Mahr agreements have two parts: a premarital payment in exchange for marriage vows, and a post-nuptial payment made if the marriage ends in divorce or death (a sort of deferred settlement). According to the wife in the Kansas case, her mahr agreement required the Husband pay her the deferred payment of 1,354 gold coins – worth about $677,000.

There were a lot of problems with the mahr agreement in the Kansas case. These problems often arise in marriage contracts from foreign countries which are primarily for religious purposes, or intended to be enforced in religious or foreign courts. The most important grounds the court gave for not enforcing the mahr included:

1. The mahr was never translated into English;

2. The mahr would function as a penalty, and Kansas is a no-fault state;

3. The mahr created tension between the Establishment and Equal Protection Clauses; and

4. The court suggested the mahr might not even qualify as a prenuptial agreement.

Florida law is slightly different from Kansas in this area. There are very few Florida appellate cases, and no Florida Supreme Court cases about mahr agreements. However, at least one Florida court has held muslim religious agreements may be enforceable in Florida, if they comply with secular contract law.

Whether you have a foreign premarital agreement, or want to enter into one, you can incorporate your religious or secular customs into a legal agreement, and have them enforced in Florida. As the Kansas case shows though, this is not something to be left for the imams back home.

Good Gift Idea for a Second Marriage: A Prenup

On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Thursday, September 6, 2012.

The probability of divorce is around 50% for first marriages. For second marriages, it’s more like 67%. The National Center for Family and Marriage Research recently analyzed the data, and found that the overall divorce rate was greater for second marriages.

What some clients don’t realize is that going through a second, third, or fourth divorce can be more complicated than first-time divorces. In multiple divorces, couples are older, and have less time to make up for losses. Also, couples are competing for dwindling resources. Child-support, alimony, and dividing up of the retirement accounts may still be pending, and there can be little left to divide in a second divorce.

Prenuptial agreements can be extremely important if you are thinking of marrying again, and they are not just for the ultra-rich. You can limit what’s in a prenup. Some can simply state what assets each party has brought into the marriage, and what assets each party will take away if the marriage ends. Or, if there is a disparity in incomes, you can add to the contract how much the lower-income spouse will receive. Also, if you have children from previous marriages, you can also provide some protection for an inheritance.

Of course, a prenup isn’t a requirement, you could just live together without the vows.

That may turn out swell if you are both earning about the same amount of income. Boback cautions, however, “It’s good for the person with all the stuff — and money. But the person who takes care of the home or kids and has nothing of their own after, say, 10 years of living together and then splitting up? They’re out of luck.”