Month: January 2013

Grandparent Visitation . . . Chinese Style

On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Monday, January 28, 2013.

Grandparent rights to child custody their grandchildren over the objections of fit parents do not exist in Florida. However, Florida does offer a few morsels. For instance:

  • Florida parents who are activated, deployed, or temporarily assigned to military service can now designate to grandparents their timesharing rights.
  • Also, Chapter 751 authorizes a court to order concurrent custody to extended family members who have physical custody, but lack documentation necessary to consent to a child’s medical treatment, or to enroll a child in school.
  • Additionally, voters adopted the “Granny Flats” amendment to the Florida Constitution, which provides tax incentives for constructing living quarters for grandparents.

But, these are just crumbs of visitation rights compared to how well grandparents are treated elsewhere. As the Bangkok Post reports, China has passed a new law requiring parents to regularly visit elderly relatives!

The ruling, approved by China’s National People’s Congress on Friday, is part of a package of amendments to the Protection of the Rights and Interests of the Elderly legislation and will come into force on July 1, 2013.

“Family members who live separately from the elderly should visit them often,” the law says, adding that “employers should guarantee the right to home leave in accordance with relevant regulations”.

The law mentions no specific penalties for those who fail to visit frequently, nor elaborates on what “often” means.

But it does state that if the rights and interests of the elderly are violated, they or someone on their behalf can seek official help or file a lawsuit.

The wide-ranging law includes clauses covering intra-family conflicts regarding support obligations, housing and assets. It stipulates punishments for people who abuse the elderly, fail to support them and interfere in their freedom to marry.

The legal changes reflect the challenge China faces in dealing with an increasingly ageing society after three decades of limiting couples to a single child.

The official Xinhua news agency said Friday that the law was amended “amid government efforts to find comprehensive solutions to issues facing the elderly population, as the number of Chinese senior citizens has grown rapidly in recent years”

When Men Get Pregnant Who Gets Custody?

On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Tuesday, January 22, 2013.

One thing about child custody cases, they never get boring. Take the new case out of Phoenix that the Arizona Republic is reporting on. An Arizona judge is deciding whether he has jurisdiction to grant a divorce to Mr. Thomas Beatie. Tom’s an ordinary man except for one thing: he is also the birthmother of the married couple’s child. That’s right, the biological dad is also the biological mother.

Tom was born a woman named Tracy in Hawaii. Apparently, Tracy was pretty good looking too, as she participated in beauty pageants and worked as a model. Tracy began undergoing testosterone therapy, and after psychological testing, was “determined to have male gender identification.” The first of the surgeries was performed in 2002. After that Tracy’s birth certificate and driver’s license changed, and six months later, Tracy became Tom.

Tom married his girlfriend Nancy, and because Nancy couldn’t have children, Tom had the child. When news leaked out, Tom became an instant hint as “The Pregnant Man,” appearing on Oprah, Barbara Walters, Letterman etc. He also wrote a book, and is a motivational speaker for transgender rights.

This term, the United States Supreme Court will hear two cases involving same-sex marriage, although those rulings may come too late for Tom’s case. The Supreme Court will hear a challenge to the federal Defense of Marriage Act (aka DOMA), under which the federal government is forbidden to acknowledge same-sex marriages even if they are legal in the couple’s state of residence. Another challenge centers on California law, which previously granted same-sex marriages, but was later amended to revoke those rights.

Transgender cases are not very common, but they are turning up more frequently, and pose challenging issues. We shall see whether in Arizona the best interest of the child test impacts consideration of sexual identity.

Shared Custody Agreements and Religion

On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Friday, January 18, 2013.

Joint child custody in parenting plans and agreements help resolve a lot of the child timesharing issues after the divorce. But sometimes the provisions conflict with each other. The Volokh Conspiracy recently reported on the interesting New York case of Katz v. Katz. Katz involves two ultra-orthodox Jewish parents. The parties separated religiously, but never had a court approve their agreement. The agreement said:

(7) JOYOUS OCCASIONS. The Child will participate in every joyous occasion of the relatives who are disqualified as witnesses, such as engagement, wedding . . .

(8) EDUCATION. The 2 parties are obligating themselves to raise The Child to appropriately respect the 2 parents. . . No party will take The Child to any place which is incompatible with the aforementioned style and manner, not even temporarily . . .

The mother wanted to travel to Israel with the child for her brother’s wedding. The father objected, citing his religious beliefs that travel to Israel violated the religious views of his Jewish sect. He argued travel to Israel would undermine the child’s religious beliefs, confuse the child and “would be against the child’s best interests because he is too young to understand the differences that he will be exposed to in Israel . . .”

The mother noted that the father himself has already traveled to Israel – in fact he acknowledged that he traveled to Israel three times, and as recently as within the last 12 months, but that each time he traveled to Israel it was in his adult life, not as a child.

Strangely, the judge ruled:

At this juncture, it is not in this child’s best interest to require him to travel to Israel for a celebration; the emotional risk to him outweighs any benefit that conceivably would be derived from the experience. Furthermore, the mother did not demonstrate any serious adverse affects that would be contrary to the child’s best interests if he were to stay.

As a side note, religion and divorce often get thrown together, such as in the Muslim Mehr agreements I blogged about earlier. The establishment clause tries to separate government and religion, but Katz shows why it can’t be avoided sometimes. However, the Establishment Clause is usually not violated when neutral principles of law, such as the best interest of the child test, can resolve a dispute without relying on religious doctrines.

Sperm Donors Could Be Forced to Pay Child Support

On behalf of Ronald H. Kauffman, P.A. posted in Child Support on Thursday, January 10, 2013.

child custody can be heavily litigated despite guidelines, especially for sperm donors who never intended to be parents.

Florida protects surrogacy, and has comprehensive laws protecting the baby, intended parents, donors and surrogates. For example, Florida allows a commissioning couple to enter gestational surrogacy contracts in which a commissioning couple reimburses a surrogate for reasonable expenses, and on the child’s birth, the 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.

However, serious problems can arise if this statute is not followed correctly. ABC News reports on Topeka, Kansas resident and sperm donor, William Marotta, who is currently facing a child support petition by the Kansas Department of Children and Families:

The state of Kansas is seeking child support from a man who says he signed away all parental rights when he donated sperm to a lesbian couple.

. . .

Marotta, 46, met Angela Bauer and Jennifer Schreiner in 2009 when he responded to a Craigslist ad from a lesbian couple in Topeka, Kan., who were offering $50 per sperm donation, according to legal documents.

. . .

All three signed a sperm donor contract that stated that he would have no paternal rights and would be in no way responsible for any child that resulted from the donation.

. . .

“Three years forward, the couple sought state assistance for the child and the Kansas Department of Children and Families sought out of them the name of the father and said they would not provide assistance unless they provide the name,” Swinnen said.

. . .

The filing said that the state had spent $189 on the baby from July 2012 to September 2012 and nearly $6,000 in medical assistance, which Marotta had a duty to pay.

. . .

“The state does not recognize the contract. We’ll see if the courts in Kansas do,” Swinnen said. “We have filed a motion to dismiss. We hope to prevail, but this is the first round.”

A hearing on Marotta’s motion to dismiss the state’s petition is supposed to be heard this month.

Can Divorcing Save You Money in Taxes?

On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Sunday, January 6, 2013.

There are many good reasons people have for getting divorce. But should you get divorced for the money saved on tax filing status? The Eleventh Hour agreement to avoid the fiscal cliff known as the American Taxpayer Relief Act of 2012, was signed into law this week and may have created a new marriage tax. The Act may make divorce a very profitable decision for couples seeking to reduce their tax exposure, whether they want to divorce or not.

As the online news magazine The Fiscal Times reports:

Meet the new George and Martha – two investment bankers who fell in love over a bottle of Barolo while students at Wharton. They were made for each other: they had the looks, the lifestyle, and the resumes that Wall Street firms bid for . . . Before long they were each making about $400,000 a year. And, thanks to the Bush-era tax cuts, they were able to keep a lot of that money and live the high life.

The new law raises taxes on couples making more than $450,000 and individuals making more than $400,000. When their accountant told them they may have to limit their deductions because of their joint incomes as well, they asked her to run the numbers and come up with an alternative. As it turns out, George and Martha would save over $27,000 a year if they divorced. And so they did. But they’re still together, in some ways closer than ever.

Think about that for a second. If a couple could save $27,000 annually on their taxes, they could take a European cruise, Colorado ski vacation, put a little cash away towards college expenses, and even have some mad money left over – every year. How, just by divorcing and staying together in a long term relationship!

Gay Divorce is Here…or uhm There!

On behalf of Ronald H. Kauffman, P.A. posted in Domestic Partnerships on Tuesday, January 1, 2013.

Marriage in Florida is limited to a man and a woman. divorce too. This means gay couples cannot legally marry in Florida. Their unions are not recognized either. What about gay divorces? While the issue of gay marriage appeared in the presidential elections, and is a hot topic in other states, there has not been a lot of news about the issue of gay divorce anywhere.

However, a Family Court in Ramat Gan, Israel corrects this omission. The Family Court last week approved a divorce between Professor Uzi Even and Dr. Amit Kama, two gay men. This is not the only first for Mr. Even, he is also the first openly gay member of Israel’s parliament, the Knesset.

The decision is an important one, because Israeli law only recognizes marriages performed under the auspices of religious courts. In Israel, gay couples are forbidden to marry. Instead, gay couples marry in civil ceremonies in other countries, or simply don’t marry. Unlike Florida however, their marriages are recognized in Israel when they return from abroad.

Israel’s Interior Ministry can try to veto the Family Court decision. The ministry would have to go to court in order to do so. A few years ago, the Israeli Supreme Court forced the Interior Ministry to recognize same sex marriages performed abroad, and ordered the government to list a gay couple wed in Canada as married. Same sex marriages are performed in Israel, but they have no formal legal status. As the Israeli paper Haaretz reports:

“The irony is that while this is the beginning of a civil revolution, it’s based on divorce rather than marriage,” newly divorced Kama, a senior lecturer in communications in the Emek Yizrael College, told Reuters. He and Even, both Israelis, married in Toronto in 2004, not long after Canada legalized same sex marriage. They separated last year, Kama said. It took months to finalize a divorce as they could not meet Canada’s residency requirements to have their marriage dissolved there. At the same time in Israel, rabbinical courts in charge of overseeing such proceedings threw out the case, Kama said.

By winning a ruling from a civil court, Kama and Even may have also set a precedent for Israeli heterosexual couples, who until now have had to have rabbis steeped in ancient ritual handle their divorces, legal experts say.

“This is the first time in Israeli history a couple of Jews are obtaining a divorce issued by an authority other than a rabbinical court, and I think there is significant potential here for straight couples” to do so as well, said Zvi Triger, deputy dean of the Haim Striks law school near Tel Aviv.