Month: August 2014

Relocating with Children Out of State: The Risks

On behalf of Ronald H. Kauffman, P.A. posted in Relocation on Friday, August 29, 2014.

A parent who wants to child custody with their child out of town, or out of state, creates special risks to the relationship between the child and the parent who stays. What are some of the risks in a typical move-away case?

I’ve written about relocations before. One of the first things to consider is the age of the child. For example, younger children may have a problem with the emotional and physical consequences of losing their bonds with their mom or dad. For older children, losing their friends, sports or school buddies is a bigger concern.

Another problem is the location of the new home. If the distance and travel time are far enough away, there could be a risk that the non-moving parent may just lose contact or that drop their involvement in their child’s life.

Another area of a risk of problems depends on the child’s own individual personality. Boys have been known to have behavioral problems. Children with higher cognitive ability may adjust better than others.

A big risk concerns the alienating parent who tries to limit contacts, inhibit information regarding the children, makes derogatory remarks. The more likely a parent tries to alienate another parent before moving, the greater the risk relocation may harm the child more.

Some parents move away in good faith. For instance, they have a new job offer, or they’ve met someone new and are getting married. That’s not always the cases.

Some parents try to relocate in bad faith: they think of relocation as a way to interfere with the relationship between the children and the non-moving parent.

Relocation issues do not always appear in a cut-and-dried manner. Sometimes it is difficult to tell if relocation is in bad faith, or even if it’s in good faith, the relocation is in the child’s best interest. Some of the risk factors identified in this post can help determine if relocation will be in the child’s best interest.

Sharia in Florida Family Law Cases

On behalf of Ronald H. Kauffman, P.A. posted in Religious Divorces on Monday, August 25, 2014.

Divorce cases sometimes involve foreign laws: laws from other U.S. states, other countries and even religions. Can this include Sharia, or does a new Florida law prevent arguing Sharia in court?

Here is an example of how it can come up in a case. A woman from Egypt claims she married her husband according to Islamic law. The man tries to dismiss her divorce, arguing there was no valid marriage.

These are high stakes. If a judge rules they were married, there will be a divorce and she could receive alimony and marital assets. If there was no marriage, then the woman could be left with nothing.

To make the ruling, the judge needs to know what Sharia says about what a legal marriage is. The judge will also need to hear from expert witnesses on Islamic law before making a decision.

But what if Florida judges were could not even consider Sharia law (and other foreign laws) in making the decision. That may very well be the future the Florida legislature would like.

I’ve written about this before. Earlier this spring, the Florida Senate passed Senate Bill SB 386, which was approved by the Governor in May. Specifically, the bill prohibits courts in Florida from:

Basing a decision on a foreign law that does not grant the parties to litigation the same rights guaranteed by the Florida or U.S. Constitutions.

Enforcing a ‘choice of law’ clause in a contract which requires a dispute to be resolved under a foreign law that does not grant the parties the same rights guaranteed by the Florida or U.S. Constitutions.

Enforcing a ‘forum selection’ clause in a contract which requires a dispute to be resolved in a forum in which a party would be denied his or her fundamental rights guaranteed by the State Constitution or the United States Constitution.

There are now 32 states which have considered some limits on the application of foreign law, either through legislation or ballot initiative.

The bill does not identify any law which would deny a person’s fundamental rights. So courts will likely determine the impact of the bill on a case-by-case basis.

Also, Florida’s bill does not mention Sharia. In fact, no religion is mentioned at all, so a challenge to the law requires application of the Lemon test, requiring both a secular government purpose and that the law does not facilitate excessive governmental entanglement with religion.

Senate Bill 386 can be read here.

Grandparent Visitation: New Health Study

On behalf of Ronald H. Kauffman, P.A. posted in Grandparent Rights on Thursday, April 24, 2014.

Grandparent rights to visitation are in the news. A new study shows the effects of grandparent child custody on improving cognition. Is improving the health and well-being of a grandparent a valid concern in the grandparent visitation debate?

A recent study out of Australia found that the amount of time spent minding grandchildren predicted differences in cognitive performance. The study revealed:

The highest cognitive scores for most tests were seen in participants who minded grandchildren for 1 day a week. It was also a significant positive predictor of immediate recall performance

However, minding grandchildren for 5 days or more per week predicted lower performance.

The study suggest that spending 1 day a week minding grandchildren was optimal for cognition, but minding grandchildren for 5 days or more per week may have led to lower working memory performance and processing speed.

These results indicate that highly frequent grandparent visitation predicts lower cognitive performance.

My article, Bleeding Grandparent Visitation Rights is available for download at the Florida Bar’s website. The article examined the history of grandparent visitation rights in Florida, the U.S. Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57 (2000) and the recently enacted Florida Statute §61.13002(2) in light of Florida and U.S. Supreme Court cases.

Grandparent rights of visitation in Florida has been a highly litigated and bitter fight. This new study sheds a little more light on the debate. Namely, should the health and cognitive impact on grandparent visitation be of concern to a court or the legislature?

An Abstract of the study can be found here.

Florida Same-Sex Marriage Update

On behalf of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Friday, August 22, 2014.

Big news in Florida’s divorce marriage war. A federal judge in Florida ruled that the same-sex marriage ban was unconstitutional, and ordered Florida to issue a marriage license to a same-sex couple.

Specifically, the order:

Requires the Secretary of the Florida Dept. of Management Services and the Florida Surgeon General to not enforce Florida provisions on same-sex marriage;

Requires the Florida Surgeon General to issue a corrected death certificate showing a female plaintiff was legally married to another woman;

Ordered the Clerk of Court of Washington County to issue a marriage license to two men;

But then stayed enforcement of the order to take effect until 91 days after stays have been denied or lifted.

The court found that sexual orientation was not a suspect classification, but marriage was a fundamental right. The court applied a strict scrutiny test, which requires a compelling state interest, and found Florida’s law could not justify itself.

When observers look back 50 years from now, the arguments supporting Florida’s ban on same-sex marriage, though just as sincerely held, will again seem an obvious pretext for discrimination. Observers who are not now of age will wonder just how those views could have been held.

-U.S District Judge Robert L. Hinkle

The judge stayed most of the effects of his ruling pending appeal. This means that nothing has changed as of yet. We are in a legal limbo in Florida. The judge added:

The institution of marriage survived when bans on interracial marriage were struck down, and the institution will survive when bans on same-sex marriage are struck down.

The case involved individuals who sued Florida to recognize their marriages or grant them marriage licenses Defendants include Gov. Rick Scott and Attorney General Pam Bondi. A spokespman for the Governor said:

The Governor respects the many views Floridians have on this issue. He believes in traditional marriage, consistent with the constitutional amendment passed by voters in 2008.

This is the first federal decision in Florida. When the stay is lifted, it will have statewide impact, and more families will be protected under Florida law. They may apply and receive health insurance, pension benefits and other state rights now limited to different sex partners.

Judge Hinkle’s order is available here.

Homeschooling and Child Custody

On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Wednesday, August 20, 2014.

Joint child custody, or shared parental responsibility, is frequently ordered in Florida, and requires parents to jointly make decisions. What happens if parents disagree about where their children should go to school?

Issues relating to education are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court. At the trial, the test applied is the best interests of a child.

Determining the best interests of a child in Florida is not entirely subjective, but based on an evaluation of statutory factors affecting the interests and the circumstances of the child’s family.

Courts should limit themselves to the statutory factors, but judges – like the rest of us – have their own biases. This is frequently seen in cases against homeschooling.

A new case out of Kansas about homeschooling, and reported by The Volokh Conspiracy, shows this bias.

In the Kansas case, the trial judge ruled:

” . . . I’m granting primary custody to Mr. Rocha for a number of reasons, one of which is . . . he appears to understand that the benefits of education aren’t just what you learn, it’s – the socialization and interaction with other students, which are important, that cannot be achieved by homeschooling.” The judge added “that [the mother] is educating the girls for the Fifteenth Century, not the Twenty First Century.”

Did you catch that flicker of bias in the judge’s ruling comparing homeschooling to an education for the 15th Century? The appeals court disagreed:

The trial court’s statements that socialization and interaction with other students cannot be achieved by homeschooling are unsupported. . . There is no evidence to support the trial court’s homeschooling comments in this case.

The court of appeals upheld the trial court’s decision to award the primary custody to the Father, even though it disagreed with the homeschool ruling.

The appellate court also noted a Pennsylvania case which weighed educational decisions on a “case-by-case” basis, and used the best interests of the child standard.

There is no Florida case on point, but the Pennsylvania case and the recent Kansas case are probably the correct approach.

One thing to avoid is allowing family court judges to rely on their feelings of whether homeschooling is better or worse for children. A judge has to base the decision on substantial and competent evidence in the record.

The Volokh Conspiracy post is here. The Kansas case is here.

Out of State Custody – Parent Relocations

On behalf of Ronald H. Kauffman, P.A. posted in Relocation on Monday, August 18, 2014.

When a parent moves more than 50 miles from their residence with a child, we call it a child custody. If both parents agree, an agreement must be entered. But if a parent objects, a judge must decide before a parent can move away.

I’ve spoken on this topic earlier this year, and the issue frequently comes up at the start of a new school year. Relocations are governed a Florida Statute. Before passage of the law, parents frequently moved the child to a different city or out of state without consent.

Under the relocation statute, parents have to agree or a judge will have to determine whether to allow a parent’s request to move the child. Whatever is in the best interest of the child is considered paramount.

Deciding whether to permit the move-away of a parent is complicated. In order to decide the best interests of the child, there are no presumptions in favor or against a relocation under Florida law.

Instead, the court must consider statutory factors such as:

  • The child’s relationship with the parents,
  • The age of the child,
  • The quality of post-move contact,
  • The child’s wants,
  • Will the move enhance the quality of life
  • Reasons for relocating,
  • Economic circumstances,
  • Is the request made in good faith, and
  • Is there a history of abuse.

Relocation cases are governed by a very technical statute, with deadlines and requirements that are specifically stated and enforced. Mistakes are commonly made by the inexperienced, which can be devastating to your case. Both parents are well served by a lot of preparation and sound legal advice.

The relocation statute is available here.

Transgender Divorce: Married Pregnant Man Can Divorce!

On behalf of Ronald H. Kauffman, P.A. posted in Same sex/GLBTA on Thursday, August 14, 2014.

One thing about matrimonial lawyer work, it never gets boring. A landmark case yesterday is the first to recognize a transgender person’s right to divorce. It also happens to be the first married, pregnant man’s divorce.

I’ve written about Tom’s case before. He was born a woman named Tracy. She was cute too, and participated in beauty pageants and worked as a model. The first of her surgeries were performed in 2002, and later, Tracy became Tom!

After a court hearing in December 2012, the trial judge ruled that Arizona did not have jurisdiction over Tom’s case and that Tom’s marriage was invalid under Arizona law as a “same-sex marriage.”

But a three-judge panel of the Arizona Court of Appeals overturned that order, and ruled that Tom’s marriage in Hawaii in 2003 is considered valid in Arizona, and concluded it wasn’t a same-sex union.

The Arizona Court of Appeals held:

We find the Family Court has subject matter jurisdiction to proceed with Beatie’s petition for Dissolution of Marriage and, ultimately, to enter a Decree of Dissolution, and therefore reversed the Family Court’s dismissal of Beatie’s Dissolution petition.

The court focused on the fact that Tom complied with Hawaii’s “clear and unambiguous” statute regarding sex change operations, and obtained a valid Hawaii marriage license.

The court specifically stated “there is no apparent basis in law or fact for the proposition that in the event Thomas gave birth after having modified his gender designation, it would have abrogated his “maleness”, as reflected on the amended birth certificate”.

Tom made headlines in 2008 as the World’s First Married Pregnant Man after being legally recognized as a man in 2002. As a married transgender male, he then gave birth to his three children from 2008 to 2010 and now resides in Arizona.

Tom said, “I feel I have finally been recognized in Arizona as not just a man, but a human being.”

You can read more about the world’s first transgender, pregnant male divorce here.

Do Daughters Cause Divorce?

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

Knowing your baby’s sex can tell you a lot of things: like what color to paint the baby’s room, what baby gifts to get and . . . whether your marriage will end up in divorce court?

Studies have reported that marriages in which the firstborn are daughters are more likely to divorce than those producing firstborn sons. Researchers have observed a correlation between couples with daughters and their likelihood of divorce, which tends to be higher than for couples with sons.

Explanations abound: When adult sons live at home, they add to their parents’ workload. But when adult daughters live at home, they decrease the daily workload. Wives with daughters are less likely to stay with their husbands because with a girl, they’ll never be lonely or without help; and are less willing to tolerate bad husbands.

New research is showing the association between divorce rates and daughters might have more to do with what happens before birth. Female embryos tend to be hardier than male embryos, so girls may be surviving stressful relationships that boys can’t survive.

Using data from the National Longitudinal Survey of Youth (NLSY79), research has found that conflicts in relationships predict the sex of children born after the conflict and also predicts subsequent divorce.

Researchers are taking pains to point out that their study indicates the need for a change in how research is conducted. Typically, studies about divorce start after birth. This new research is showing that other factors come into play before a child is born.

It seems pretty basic that couples with children face big conflicts that have nothing to do with parenting. But this new research is showing these conflicts exist and cause tension in relationships before kids are even born.

You can read more about the study here.

Florida Gay Marriage/Divorce Update

On behalf of Ronald H. Kauffman, P.A. posted in Same sex/GLBTA on Wednesday, August 6, 2014.

A Broward County circuit court judge overturned Florida’s same-sex marriage ban this week, in order to allow a same-sex divorce.

Heather Brassner, who has lived in Florida for years, formed a civil union in Vermont in 2002. They split up, and Brassner lost touch with her partner. She now has a new same-sex partner, and needs to get the civil union dissolved in order to marry. As Channel 10 news reports:

Broward Circuit Judge Dale Cohen ruled that Florida must recognize Brassner’s Vermont civil union for purposes of dissolving it so that she can marry her girlfriend.

I’ve written about the string of federal decisions which have struck down bans against same-sex marriages, and Judge Cohen’s decision was the third state decision in Florida. The earlier decisions, however, solely ruled on whether a same-sex couple was entitled to marry in Florida.

Judge Cohen was the first to rule that an out-of-state civil union must be recognized by Florida so that the couple can divorce in Florida. The judge stayed his decision “pending the outcome of expected appeals on similar issues recently ruled on by courts in Monroe and Miami-Dade Counties”.

In 2008, Florida citizens voted to amend the Florida Constitution to say: “Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.”

Just like those two prior rulings in Florida, Judge Cohen’s decision doesn’t mean marriage licenses will be issued right away. A stay is in place while the state appeals.

Legal Marijuana and Custody

On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Monday, August 4, 2014.

A man lost child custody after getting a medical marijuana card. A couple has their child taken for growing medical marijuana. Police visit a home after a 9-year-old tells his teacher about his mother’s hemp advocacy.

As the News Journal, Delaware online, reports these cases were eventually decided in favor of the parents, but the incidents show a growing dilemma: possession of legalized marijuana in a state can become evidence in child custody or child abuse case.

I’ve written about this problem before. No data exist to show how often marijuana use comes up in custody disputes, or how often child welfare workers intervene in homes where marijuana is used.

But in dozens of interviews, the consensus is clear: marijuana’s growing acceptance is complicating the task of determining when kids are in danger.

Colorado considers marijuana use legal, but it is still listed as a Schedule I controlled substance, like heroin, under federal law. As a result, when it comes to defining a drug-endangered child, marijuana can’t legally be in a home where children reside.

Colorado lawmakers abandoned the effort to address this problem as too complicated. Among the teary-eyed moms at the hearing was Moriah Barnhart, who moved to the Denver area from Tampa in search of a cannabis-based treatment for a daughter with brain cancer.

“We moved here across the country so we wouldn’t be criminals. But all it takes is one neighbor not approving of what we’re doing, one police officer who doesn’t understand, and the law says I’m a child abuser,” Barnhart said.

“There are people who are very reckless with what they’re doing, leaving marijuana brownies on the coffee table or doing hash oil extraction that might blow the place up. Too often with law enforcement, they’re just looking at the legality of the behavior and not how it is affecting the children,” said Jim Gerhardt of the Colorado Drug Investigators Association, which supported the bill.

Colorado courts are wading into the question of when adult marijuana use endangers kids. The state Court of Appeals in 2010 sided with a marijuana-using dad who lost visitation rights though he never used the drug around his daughter.

The court reversed a county court’s decision that the father couldn’t have unsupervised visitation until passing a drug test, saying that a parent’s marijuana use when away from his or her children doesn’t suggest any risk of child harm.

This could hit us soon. The Florida Right to Medical Marijuana Initiative, Amendment 2 is on the November 4, 2014 ballot in the state of Florida as an initiated constitutional amendment.