Month: February 2014

Recognizing Legal Same Sex Marriages in Florida

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On behalf of Ronald H. Kauffman, P.A. posted in Same sex/GLBTA on Wednesday, February 26, 2014.

I blogged earlier about same sex couples who legally marry outside Florida, but can’t divorce because same sex marriages aren’t recognized. A federal judge recently ruled that Kentucky must recognize out-of-state same-sex marriages. Is this a prelude to striking Florida’s same-sex marriage ban?

A federal judge in the Western District of Kentucky has struck down Kentucky’s ban on recognizing same-sex marriages performed in states where it is legal.

U.S. District Judge John G. Heyburn II ruled that Kentucky’s prohibition violates the U.S. Constitution’s guarantee of equal protection under the law by treating gays and lesbians differently in a way that demeans them.

The Judge ruled:

While religious beliefs are vital to the fabric of society, assigning a religious or traditional rationale for a law does not make it constitutional when that law discriminates against a class of people without other reasons.

The judge then struck down part of Kentucky’s marriage statute which says only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky.

Florida’s is similar, and generally provides:

Marriages between persons of the same sex entered into in any jurisdiction which are treated as marriages are not recognized for any purpose in this state.

Not everyone in Kentucky is happy. State Representative Stan Lee, who championed Kentucky’s marriage law said:

“My heart breaks for my country – a country that I believe the founding fathers established as a country under God. A ruling like this, diametrically opposed to God’s law, breaks my heart.”

Interestingly, Judge Heyburn is a Republican, and was nominated for the federal bench by President George H.W. Bush in 1992. One of the more interesting comments in the decision:

“The exclusion of same-sex couples on procreation grounds makes just as little sense as excluding post-menopausal couples or infertile couples on procreation grounds.”

You can read more about the case in the Courier-Journal.

Relocations with Children: Panel Discussion

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On behalf of Ronald H. Kauffman, P.A. posted in Relocation on Wednesday, February 19, 2014.

I recently was asked to speak on a panel at the Family Court Services, Lunch and Learn lecture series on the topic of divorce: Tough Choices. Can Children Win? If you were one of the 90 or so registered attendees, you had an opportunity to hear from a panel of experts in the legal, judicial and psychological fields on cutting edge issues in relocations. If you didn’t, here are some of the take away points:

Florida’s Relocation Statute is Highly Technical

Relocations, unlike much of family law, are highly technical. They involve fast deadlines, mandatory language, detailed service of pleading rules, font size requirements, detailed pleadings, and the list goes on.

Judges and lawyers report that lawyers are frequently overlooking key provisions of the statute, and children are losing in relocation cases because these strict pleading requirements and deadlines are not being met.

Florida’s Relocation Statute has an Intricate 11 Factor Analysis

There is no presumption in Florida anymore on whether you can move away with your child more than 50 miles from your principal residence for more than 60 days. That was the old rule.

Instead, courts must evaluate a relocation request based on 10 detailed and objective factors, and one catch-all factor. These factors cross over between legal standards developed over many decades litigation, and many psychological factors. The test begs the question of what kind of team do you need to assemble on your side to successfully relocate with your child in Florida.

Relocations with Children Involves Risk

There is always a probability of harm associated with relocations. Your child could face difficulties in adjusting to a new environment, or have developmental needs which are impacted. Or, they simply are baseball fanatics and a move to a country without a baseball league could be devastating.

Factors such as the age of the child, the distance of the relocation from the non-relocating parent, the stability of the parents, the level of involvement of both parents in the child’s upbringing, substance abuse, parental alienation syndrome, and other conflicts all are factored into a decision to relocate.

The clear take-away from the presentation was that relocations involve difficult decisions, courts are required to balance several psychological and legal factors, and the statute governing relocations in Florida must be strictly followed.

The event was hosted at the Family Law Courthouse, and was sponsored by Family Court Services. Kidside is a not for profit organization devoted to supporting Family Court Services. Kidside’s website is here if you are looking to support this great organization.

Speaking on Panel about Relocation Next Week

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On behalf of Ronald H. Kauffman, P.A. posted in Relocation on Friday, February 14, 2014.

I will be speaking on a panel hosted by Family Court Services on Wednesday February 19th from Noon to 2:00PM at the Lawson E. Thomas Family Courthouse. Anyone who practices in this area or is interested should attend.When one parent moves away with the children from another parent more than 50 miles for more than 60 days it is called a relocation in Florida.

One of the most difficult situations facing parents and children is when a parent wants to relocate to another city. These are called relocation cases. Florida is in the Sun Belt, and is naturally a very mobile society.

Residential moves are very common among parents after divorce. Parents want to pursue new job opportunities, earn a degree, and return to their home community where parents and extended family live, or remarry.

The non-relocating parent usually opposes the child moving because it makes it very difficult to stay meaningfully involved with the child, or sustain a quality parent-child relationship. This is especially true when the moving parent wants to relocate with a very young child.

Relocation cases are very fact-driven, and call for a thorough investigation of the family’s context and circumstances. It is common to request guardians, psychological experts, social investigations, and parental responsibility evaluations in relocation cases.

Very often relocation cases raise issues of parental involvement with the child. Allegations are frequently made that one parent is trying to alienate the child from the other parent, and the parent who is feeling shut-out is alleging that the other parent is engaging in gate-closing behaviors to hinder involvement with the child.

Relocation cases are governed by §61.13001 of the Florida Statutes. It is a technical statute, with deadlines and requirements that are specifically stated and enforced. Both parents are charged with understanding its details, and are well served by a lot of preparation and sound legal advice.

For more information on the Family Court Services Unit of the 11th Judicial Circuit click here.

Read Every Post on your Ex’s Facebook Account!

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, February 10, 2014.

Filing for divorce can mean a lot of your personal information becomes relevant at trial. That includes your Facebook posts. Florida courts will often let your Ex, or soon-to-be Ex, discover things from your accounts. What are the limits? Last week the Second District Court of Appeals tried to answer that question.

In a personal injury action, parents of a 3-year old sued the City of Cape Coral for damages after their son was hit by a truck in front of a construction site.

The defendants asked the mother to produce copies of postings her Facebook account, and the mother didn’t want to comply because the request information was very personal and not relevant to the lawsuit.

The defendant wanted copies of postings on her Facebook account which include the following:

– Psychological care obtained by the mom;

– All postings, statuses, photos, “likes” or videos related to the mom’s relationships with her children before and after the accident;

– Her relationships with other family members, boyfriends, husbands, and/or significant others;

– Her mental health, stress complaints, alcohol use or other substance use;

– Postings about any lawsuit filed after the accident.

The court noted that none of the requests pertained to the accident itself. Instead, the discovery relates to her past and present personal relationships mental health, use of alcohol and lawsuits.

Also, the court saw it as a fishing expedition, even the defendant’s attorney admitted as much:

“These are all things that we would like to look under the hood, so to speak, and figure out whether that’s even a theory worth exploring.”

Based on the then current posture of the case, the court concluded that the Facebook discovery requests had to be quashed. However, should the status of the case change, the requested information may be discoverable.

The lesson for lawyers is to tailor Facebook requests to require production of materials related as closely as can be to the claims and defenses in the case. For litigants, watch what you post on social media sites, they may be discoverable.

The Second District Court of Appeals opinion can be read here.

Equal Timesharing Presumed in Florida

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On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Friday, February 7, 2014.

Child custody is on everyone’s mind again as the Florida Legislature prepares for its March 2014 session. Last year, Governor Scott vetoed a bill with a presumption that parents always have equal timesharing with their children. This week I spoke at the FLAFCC regional workshop discussing the pros and cons of that presumption.

Fifty-fifty timesharing between parents may sound like a great idea, and there are strong arguments for and against a presumption of equal timesharing. Here are some of the arguments for and against a presumption in favor of equal timesharing raised at the workshop:

Pro

  • Each year, cases are tied up in court to establish a right to see children that parents would automatically have if they were married.
  • An equal time presumption promotes Florida’s existing policy of frequent contact after divorce.
  • Equal timesharing puts the burden on the parent opposing equal timesharing, changing the dynamics of custody litigation.
  • Equal timesharing is consistent with Florida’s existing no-fault concept.

Con

  • Requiring every family to have equal timesharing is like requiring every family to wear a size 4 shoe. Not every family fits.
  • The presumption creates a uniform rule where the flexibility of ‘the best interest of the child’ is needed.
  • Requires courts to focus on QUANTITY of time instead of QUALITY of time.
  • Requires courts to focus on what’s best for the parents instead of what’s in the child’s best interest.

The FLAFCC workshop was well attended. Family lawyers, family division judges, expert psychologists and interested people were able to break out into teams, listen to lectures and watch movies on the issue.

With the 2014 Legislative session starting next month, and bills already in committee, this is an interesting time to keep your eye on this issue.

Speaking about Equal Timesharing Presumptions this Friday

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On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Monday, February 3, 2014.

I will be speaking Friday, February 7, 2014, at the Florida Chapter of the AFCC Miami Regional Training held at the Lawson E. Thomas Family Courthouse. The subject is: “Equal Time-sharing: Is It Presumptively Best?” The AFCC is an organization of judges, lawyers, mental health professionals, and other experts who are improving the lives of children and families. The training is open to anyone interested in this important, interesting and timely topic.

Child custody, now known in Florida as time-sharing, can be an extremely painful part of any divorce or separation. Fathers think courts always side with Mothers. Conversely, Mothers worry Fathers only want to increase timesharing to lower their child support obligations. When parents can’t agree, the court has to decide.

What are the presumptions judges must rely on in creating a parenting plan and time-sharing schedule? Have you ever wondered what judges, lawyers, parenting plan evaluators, guardians ad litem and other related professionals thought of equal timesharing? If so, then this is an event for you.

Florida used to have a judicially created presumption against rotating custody. Then last year, legislators working on the alimony bill added a last-minute provision requiring courts to order equal timesharing. The alimony bill was ultimately vetoed by Governor Scott at the last minute. However, there are rumors that it may surface during this upcoming legislative session.

I hope to see lawyers, judges, clients, anyone interested in this topic, and readers of this blog there.