Month: May 2014

Spanking & Custody: Can you lose your children for spanking?

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Thursday, May 29, 2014.

‘Spare the rod spoil the child’ sayeth Proverbs. This week there’s a debate in France to ban spanking. Can you spank without fear of losing child custody or it impacting time-sharing in Florida?

As Radio France Internationale reports, In France, lawmakers are behind a proposed amendment to a wide-ranging family law which is being debated in the French parliament.

One measure of the proposed bill states:

legal guardians cannot use corporal punishment or physical violence against children.

Spanking in Florida

In Florida you’re not supposed to hit your children. Florida has strong laws for the protection against domestic violence.

Domestic violence includes any assault, battery or any other offense resulting in physical injury of a family member by another family member.

However, parents have to discipline their children, and as the good book says, he who loves his child is careful to discipline him. In Florida, parents have a right to discipline their child in a reasonable manner.

A parent’s right to administer reasonable corporal punishment to discipline a child is not a crime when it does not result in harm to the child.

Harm, by the way, does not mean just bruises or welts for instance. Harm also means that the discipline is likely to result in physical injury, mental injury, or emotional injury. Even if you don’t physically harm a child, your actions could be criminal.

Florida’s parental privilege to use corporal discipline does not give absolute immunity either. Your run-of-the-mill spanking may be protected from charges of child abuse, but punching your child, pushing him onto the floor and kicking him is not.

So, is it open season on kids? Hardly. Guardians and judges are analyzing you, and you don’t want to start off your custody case explaining why you beat your kids. The excuse: “this fellow does what the bible says” will not score a lot of points in a courtroom.

Besides, some studies suggest that time-outs work just as well as spanking for immediate punishment, and that for long-term effectiveness, spanking decreases compliance. Worse, spanking may increase child aggression.

While there are some limited privileges for discipline, there are major risks to your custody case, your criminal defense case, and most importantly, to your children.

The front page of the Miami Herald is usually filled with horrible stories each week on child abuse. As a society, we are constantly searching for ways to protect children from abuse. Besides, the results of spanking may be counterproductive.

The RFI report on spanking in France can be read here.

Florida Same Sex Marriage: More State Bans Fall

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On behalf of Ronald H. Kauffman, P.A. posted in Same sex/GLBTA on Tuesday, May 27, 2014.

I’ve written about Florida same sex couples who marry legally, but can’t divorce here. Florida is one of a dwindling number of states outlawing same sex marriage. Last week, two other states’ bans fell.

U.S. District Court Judge John E. Jones III in Pennsylvania called the plaintiffs courageous for challenging the constitutionality of the state ban writing:

“We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.”

Activist judge? Obama appointee drunk with power? Think again. Judge Jones was recommended by ultra-conservative, former Republican Senator, Rick Santorum, and was appointed by George W. Bush.

Judge Jones was also the judge in the famous evolution case whose order barred the Dover Area School District from teaching Intelligent Design, calling it: “a mere re-labeling of creationism” in Kitzmiller v. Dover Area School District.

The ruling is effective immediately.

Same sex marriage bans have been falling around the country this year since the U.S. Supreme Court last year struck down part of the federal Defense of Marriage Act sometimes called DOMA.

Pennsylvania is now the 19th state to legalize gay marriage and 43 percent of Americans now live in a state with full marriage equality, according to the advocacy group Freedom to Marry.

Also this week, Oregon became the 18th state to recognize same-sex marriage on Monday. Couples began applying for marriage licenses immediately after a federal court invalidated its voter-approved same-sex marriage ban.

And finally this week, Utah ordered state officials to recognize more than 1,000 gay marriages which took place in Utah during the two-week period before the U.S. Supreme Court halted same-sex weddings with an emergency stay.

The Pennsylvania memorandum opinion can be read here.

Comedian Louis C.K. On Post-Divorce Fatherhood

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Wednesday, May 21, 2014.

There’s a thin line between comedy and tragedy. This is true in divorce. Louis C.K. is an actor and comedian. He is also a divorced father who shares custody. He has some interesting comments about being a divorced father.

Personally, I like his crabby and profane stand-up routine, His T.V. show Louie is also great. Last week Louis C.K. gave an interview on National Public Radio about divorce on the program Fresh Air. Here’s what he had to say:

There is a version of divorced life where you’re partners and you’re both taking care of the kids, the kids are spending equal time with each parent, and there’s balance and there’s harmony between the parents because they’re not married in a bad marriage anymore.

If you do it right, it’s a much better life for the kids. I was determined to make sure that my kids still felt me in their lives after divorce. And then I was astonished to find out that they wanted to be with me all the time, that this was positive for them.

It motivated me to make a good life for myself so that the kids would have a good home when they came to my place. And their mom is a good co-parent; we’re good partners together, we’re friends and we’ve both I think done a pretty good job of letting the kids feel like they have everything.

They have a mom and they have a dad who get along and who are both there for them.

This is a great example of what I’d call a near ideal post-dissolution relationship. No one is perfect, and I’m sure his relationship with his Ex is not so clean either. But Louis C.K. portrays his imperfections in the T.V. show:

When his T.V. daughter has to write a letter to AIDS for class, Louie offers some suggestions. “Dear AIDS,” he suggests. “Why don’t you cut it out?”

He’s funny. He’s not perfect. He is doing the best he can . . . and he’s there.

The NPR interview is available here.

Beware of Sperm Donating Vampires!

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On behalf of Ronald H. Kauffman, P.A. posted in Assisted Reproductive Technology on Monday, May 19, 2014.

If you’re wondering if a sperm donor is a parent of your child, or you’re an intended sperm donor using divorce to impregnate your girlfriend and worried about your rights, be afraid. Be very afraid.

Way before Twilight made vampires sexy, there was The Lost Boys. For the last two years, The Lost Boys actor Jason Patric has been battling a different kind of vampire, and searching for his own lost boy.

Jason and his girlfriend Danielle tried to get pregnant, but the attempts went cold. In 2009 they paid for artificial insemination. Gus was born, named after the Mother’s family, and Gus’s middle name, Theodore, was for the Father’s family.

The couple broke up, and Jason filed for paternity and shared custody. The Mother drove a stake through the heart of the father-son relationship by withholding visits. She claimed he was threatening and hostile.

California has conflicting statutes in its Uniform Parentage Act. One statute says that a person is presumed to be a natural parent if he meets certain conditions, like receiving the child into his home and openly holding out the child as his natural child.

The other statute in the UPA says that a man who donates sperm to a licensed physician for use in a woman other than his spouse is not the natural parent of a child unless agreed to in writing. I’ve written on Assisted Reproductive Technology (ART) before.

Jason and Danielle had no agreement, but he held the child out as his natural child and received the child into his home. At trial, the judge agreed with the Mother, and the Father appealed.

Last week, the Second Appellate District Court in Los Angeles ruled in favor Patric – proving a vampire’s lawsuit can rise from the dead. The case was remanded back to the trial court to hear Patric’s claims to having received the child into his home and holding himself out as his son.

Florida is very advanced in ART law, and is one of the few states that permits intended parents to establish the parental status to a child born through ART without a paternity/adoption process.

However, Florida statutes make detailed provisions that must be followed for a contract for it to be enforceable. These are not contracts for “do it yourselfers” you buy at The Home Depot.

Anyone interested in knowing more, should take steps before the process to avoid these costly and personally devastating custody cases.

The Jason Patric case is available to be read here.

New Domestic Violence Law & Does Margarine Cause Divorce?

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On behalf of Ronald H. Kauffman, P.A. posted in Domestic Violence on Friday, May 16, 2014.

Few people realize that the first hearing for a divorce injunction is ex parte – meaning the other side doesn’t show up or even know about it. In ex parte hearings, you can’t introduce evidence other than sworn pleadings and affidavits. A new law changes that.

The latest legislative session ended, and Governor Scott signed many bills into law. As part of the flock of bills flying out of Tallahassee, a new bill amends Florida law to allow courts in domestic violence cases to take judicial notice of court records when imminent danger is alleged.

Ordinarily, the Due Process clause of the Constitution protects litigants in ex parte hearings, limiting the kind of evidence a party can try to admit without them knowing.

This new bill, which became law this week, provides a waiver to the Due Process requirements for the admissibility of evidence at ex parte temporary injunction hearings.

The Senate bill can be read here.

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Is there a link between eating margarine and the divorce rate?

Florida is a No-Fault Divorce state, so it doesn’t much matter the cause of a divorce. But, have you ever wondered why people get a divorce? I’ve blogged about this topic before. For instance, could divorce rates be linked to other variables?

There could be a correlation, but proving a mere correlation between things does not mean that one causes the other. Just because there is snow outside your window in the morning doesn’t mean sleeping causes snow. Some events are just coincidences, or in statistic-speak, “spurious correlations.”

A spurious correlation occurs when two things appear related, but in reality are not. For the statistically inclined, Tyler Vigen has assembled a few funny charts of spurious correlations. I’ve copied a funny chart showing the rates of divorce and margarine consumption.

More of these funny correlations are available at Tyler Vigen’s website.

Big Change to the Child Support Guidelines

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On behalf of Ronald H. Kauffman, P.A. posted in Child Support on Wednesday, May 14, 2014.

Florida’s divorce guidelines were just changed. The latest amendment allows parents to deviate from the guidelines because of their verbal timesharing schedule. Before they couldn’t. Effective July 1st, now they can.

We’ve been doing child support all wrong. The basic way to run child support is to calculate the combined monthly net income of both parents, the number of children and establish the minimum amount of support. The amount increases for child care and health insurance expenses.

The guidelines are the presumptive award, and courts can only deviate if certain factors in the law are met. One of these factors is the timesharing schedule – if a child spends a significant amount of time with one parent, or a parent refuses to be involved in a child’s activities.

About two years ago, a couple verbally agreed to a 50-50 timesharing schedule and tried to reduce child support based on their agreed schedule. The First District Court of Appeal reviewed the child support order granting their request and reversed!

The parents did not have a court-ordered parenting plan, they just decided it themselves. You know, like adults do. The appellate court reversed their order because the old statute did not authorize deviations based on verbal agreed timesharing schedules.

The First District then reversed around a dozen more such child support cases over the next year. Sadly for the parents who wisely chose to agree to timesharing schedules, they were being told they must go to court, spend money, and litigate the issue when they had agreements.

This latest amendment to the child support guidelines revises the circumstances in which a court may deviate from the guidelines.

After the amendment, a court can deviate from the child support guidelines based on a child’s visitation with a parent as provided in a court-ordered time-sharing schedule OR the time-sharing schedule exercised by the parents.

The bill, CS/SB 104, was just passed by Governor Scott on Monday of this week, and becomes law effective July 1, 2014. The new law will resolve a big problem that has plagued a lot of Florida families, and one that just didn’t make sense.

The details of CS/SB 104 can be read here.

Experts, Divorce and the New Rule Change

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, May 12, 2014.

We increasingly rely on experts in divorce trials. Most of my cases involve accountants, psychologists, or some other expert. Few people realize the expert witness rule dramatically changed recently.

I blogged about this rule change before, and have an article in the Florida Bar Commentator which deals with the issues in depth. One big question has to do with the way the rule was amended.

Under our constitution, the legislature can enact substantive law, but can’t pass procedural laws for the courtroom, or a separation of powers violation occurs. Many people have said the new expert rule change violates the Constitution.

For instance, the Florida Supreme Court recently refused to adopt the legislative changes to the newly created section 766.102(12), Florida Statutes, to the extent the high court saw them as procedural.

However, the Third District Court of Appeals just approved of the new statute in a case. A child, through his mother, sued her employer for her son’s premature birth and related health problems due to workplace stress.

The mother’s expert witness said that workplace stress caused the early delivery of her son with medical consequences, but the trial judge struck the expert’s testimony.

The Third District Court of Appeals upheld the Miami judge’s decision. The court noted that the statutory change requires all Florida courts to apply the new rule to all expert testimony, to apply it retroactively in pending cases, but did not discuss the possible constitutional controversy.

The Third District now joins the First District Court of Appeals in applying the new expert witness rule in pending cases.

The Third District Case can be read here.

Can You Marry Your Computer in Florida?

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On behalf of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Wednesday, May 7, 2014.

Hey, I like my computer as much as the next guy, but I don’t want to marry or divorce it. Not everyone feels the same about their PCs and Macs. Channeling Joaquin Phoenix in “Her”, a Florida man tried to intervene in the pending gay marriage federal case in Tallahassee.

The Federal judge didn’t take too kindly to the motion:

Chris Sevier has moved to intervene, apparently asserting he wishes to marry his computer. Perhaps the motion is satirical. Or perhaps it is only removed from reality. Either way, the motion has no place in this lawsuit. Mr. Sevier has alleged nothing that would support intervention.

As Fortune magazine reports:

What he’s trying to say is that same-sex marriage is the first step down a slippery slope. Let a man marry a man, and pretty soon people will start wanting to marry anything that turns them on.

He wrote in his motion:

Recently I purchased an Apple computer. The computer was sold to me without filters to block out pornography. I was not provided with any warning by Apple that pornography was highly addictive and could alter my reward cycle by the manufacturer. Over time, I began preferring sex with my computer over sex with real women. Naturally, I ‘fell in love’ with my computer and preferred having sex with it over all other persons or things, as a result of classic conditioning upon orgasm.

Fortune also notes that a “Chris Sevier” sued Apple because it sold him a computer without telling him about the evils of porn, and A&E after it fired Duck Dynasty’s Phil Robertson after he was caught spewing antigay talk. And just recently, a Chris Sevier tried to butt his way into Utah’s gay marriage legal case .

Forget about marrying your computer, Florida is in the increasingly minority of states in which marriages between persons of the same sex entered into in any jurisdiction, are not recognized for any purpose in this state. Since we don’t recognize legal gay marriage in Florida, it’ll be a long time before Florida will allow Theodore from “Her” to marry his OS.

Divorce is Contagious

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, May 5, 2014.

A Brown University study shows that the divorceof a friend can increase your own chances of getting divorced. Facebook keeps you in touch, but also brings people’s problems to you, and could be impacting divorce rates. Should you start planning for your divorce if your friend just filed?

The Brown University study, conducted in Framingham, MA, found that:

75% of participants were more likely to get divorced if a friend was divorced,

55% were more likely to get a divorce than someone who works with all married coworkers,

33% were more likely to end their marriage even if a friend of a friend got divorced.

22% of participants were more likely to divorce if they had a divorced sibling.

So, with divorce rates inching up recently, is there a virus floating around? Not really. Divorce dissolves your social ties. The Brown University study suggests that divorce is a “social contagion” – the spread of information, attitudes and behaviors through friends, family and social networks. In that regard, Facebook and Twitter are carriers!

“The key is that the effects are not so much geographical, but that you are emotionally or psychologically close to someone who gets divorced.”

I’ve written about some other facts about rising divorce rates before. The Brown University study though, had some other interesting results:

– Popular people are less likely to get divorced;

– Divorcées have denser social networks, and are much more likely to remarry other divorcées;

– The presence of children does not influence the likelihood of divorce;

– Each child reduces the susceptibility to being influenced by peers who get divorced.

– Attending to the health of a friend’s marriages supports your own.

Divorce itself is not contagious, but emotions can be. An abstract of the study can be found here.

Divorce & Lottery Winnings: How to Keep Most of It

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On behalf of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Thursday, May 1, 2014.

Jose is one lucky guy. He won $2 million in an Indiana scratch off lottery game. Equitable distribution requires he split half the winnings with his wife in a divorce. Last week a judge ordered him to give her less than 3%. Why?

Jose and his wife Maria were married for about 4 years – they married in 2002 and separated in 2006. They never divorced, and over the next six years he moved out, they barely spoke, had separate bank accounts, and lived as single people.

Five years later, in 2011, Jose won $2 million in a scratch-off game. He quickly filed for divorce. In the divorce proceedings, Maria asked the court to give her 70% of Jose’s winnings, about $1.4 million.

Maria thought she was entitled to a 70/30 split because Jose admitted that giving her 70% of the cash was a “fair and equitable distribution.” She argued that this admission conclusively establishes how the court should divide the money. The judge said no.

Because Jose and Maria were legally married at the time, courts presume a 50-50 split. But the Indiana court ruled Maria shouldn’t even get her half. Why? Because of the extended separation, the lack of comingling, and each person living as individuals.

I’ve written before about the risks of long separations:

* You have less control of assets,

* Spouses have an opportunity to hide assets,

* Circumstances change, jobs are lost, and people get ill or retire,

* Relocation with children may become harder over time, and

* Alimony reform is changing laws all over the country.

Jose’s case is one in which a long separation was actually very helpful, but that’s not always true. Jose just got really lucky . . . twice!

You’re not Jose. Don’t base your divorce planning on dumb luck.