Year: 2014

Domestic Violence and Zero Tolerance: Is It Better Protection

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On behalf of Ronald H. Kauffman, P.A. posted in Domestic Violence on Monday, September 15, 2014.

The NFL has a “zero tolerance” policy for divorce. Will this increase reporting of violence or decrease it?

I’ve written on domestic violence issues before. The NFL’s new zero tolerance policy for domestic violence makes good commercial sense for the NFL. But what about football players’ wives?

If they call the police, and their football star husband is prosecuted, that likely means a loss of millions of dollars to the wife when they are suspended. A battered wife calls the police, and their husband is out of a job, can’t pay the mortgage, and the wife and their children are headed for the poor house.

The Ray Rice case is a good example of the problem. Because the Ravens terminated his contract, they no longer owe him a $3.529 million nonguaranteed salary for this year. Rice had remaining nonguaranteed base salaries of $3 million in 2015 and 2016 that have now been eliminated.

The Ravens don’t owe him any more money. In any other job and you get arrested for domestic violence, and you could get fired. In the NFL though, you could get blackballed.

Previously, an abused woman might be willing to expose abuse to obtain protection against domestic violence. But what if every time a spouse reported domestic violence it meant the loss of their husband’s career?

The husband’s job loss would mean that the standard of living enjoyed during the marriage would be over. And worse still, the husband would be unable to pay child support, or keep the wife and the children in the family home, or have the ability to pay alimony.

This policy places abused women in a difficult choice: don’t report abuse and continue to enjoy a wealthy lifestyle, or report abuse and suffer a dramatic financial loss.

There is a likelihood that some women may not be willing to make that choice, and won’t call the police or tell their attorney out of a fear that it will leak out.

Alternatively, a battered woman may not want to say anything when the abuse first starts. By the time they do call the police, the abuse has become so bad that they’d be willing to ruin their own financial success for protection it may be too late.

What if the zero tolerance policy makes abused wives unwilling to report initial or less severe abuse, out of a well-founded fear of losing their financial standing, until the abuse becomes so bad, they risk their very lives?

The Volokh Conspiracy post is here.

Same Sex Marriage Ban Upheld

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On behalf of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Wednesday, September 10, 2014.

Favorable decisions in most courts over same sex divorce and marriage laws made you think all courts ruled the same way. A federal court in Louisiana shows that’s not true.

This lawsuit challenged the constitutionality of Louisiana’s ban on same-sex marriage and its refusal to recognize same-sex marriages permitted in other states and follows other cases I’ve written about.

Jonathan Robicheaux married his same-sex partner in Iowa, but lives in Orleans Parish, Louisiana; he alleged that Louisiana’s defense of marriage amendment to the state constitution violated his federal constitutional rights.

As the New York Times reports, Judge Martin Feldman, of the U.S. District Court for the Easter District of Louisiana in New Orleans wrote the order that the regulation of marriage was left up to the states and the democratic process; that no fundamental right was being violated by the ban; and that Louisiana had a “legitimate interest … whether obsolete in the opinion of some, or not, in the opinion of others … in linking children to an intact family formed by their two biological parents.”

Judge Feldman’s ruling was the first to uphold a state ban on same-sex marriages since the U.S. Supreme Court struck down part of the federal Defense of Marriage Act last year in the Windsor case.

Gay-marriage supporters had won more than 20 consecutive rulings overturning bans in other states. They said they would take the Louisiana case to the New Orleans-based 5th U.S. Circuit Court of Appeals, which already has before it an appeal by the state of Texas of another federal judge’s ruling that struck down that state’s gay marriage ban.

While the Windsor decision found that the federal same-sex marriage ban was discriminatory, it left a tension between the constitutional rights of same-sex couples and the authority of states to regulate marriage.

Same-sex marriage is currently allowed in 19 states and the District of Columbia, as a result of court decisions, legislative action or referendums. In some other states, courts have struck down bans, but those decisions have been stayed pending appeal.

An appeal to the United States Court of Appeals for the Fifth is assured. The Fifth Circuit is a federal court with appellate jurisdiction over the district courts in Louisiana, Mississippi, and Texas. Florida used to be in the Fifth Circuit, But, in 1981 Florida was moved into the newly created Eleventh Circuit.

The New York Times article is here.

Are Same-Sex Divorces in Florida Legal Now?

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On behalf of Ronald H. Kauffman, P.A. posted in Same sex/GLBTA on Friday, September 5, 2014.

In Florida, same-sex marriages are not recognized. Last month a Broward judge granted a same-sex divorce, and the time to appeal passed without an appeal. This allows the judge to finalize the same-sex divorce. What’s going on?

As the Miami Herald reports:

Brassner and Lade entered into a civil union in Vermont. In 2010, according to Brassner, Lade cheated on her and disappeared. Brassner, who still doesn’t know where Lade is, has now partnered with someone else and would like to marry someday.

I’ve written on the problem we have in Florida with same-sex divorces before. Florida law forbids recognizing the Vermont civil union and therefore won’t permit a divorce. And Vermont won’t dissolve the union without a signed affidavit from the missing Lade.

On Aug. 4, Judge Cohen declared Florida’s gay marriage ban unconstitutional and that Brassner and Lade be divorced, but stayed his ruling until after the 30-day appeal period was over.

“This Court finds that Florida’s ban on same-sex marriage violates the guarantees of due process and equal protection under the laws,” Cohen ruled. “Florida’s prohibition on same-sex marriage denies some citizens, based on their sexual orientation, the fundamental right to marry, and does so without a legitimate state purpose. This Court finds these laws are unconstitutional and GRANTS the Petitioner’s Motion For Declaratory Relief, declaring Florida’s ban on same-sex marriage unconstitutional.”

Now we know the state isn’t appealing. A hearing in the case, before Broward Circuit Judge Dale Cohen, is scheduled for the divorce to become final.

Although Attorney General Pam Bondi’s office offered a comment why the attorney general did not appeal the Brassner and Simpson decisions: “We were not parties to those cases,” Bondi spokeswoman Jennifer Meale said

The Miami Herald article is available here.

Divorce at 48

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Tuesday, September 2, 2014.

A writer at Huffington Post describes what a late-in-life divorce is like when her husband of 27 years sat her down on their new chaise lounge and told her he loved somebody else.

I’ve written on the phenomenon of gray divorces before. In 1990, 1 in 10 persons who divorced was 50 or older. By 2011, according to the American Community Survey, more than more than 1 in 4 were aged 50 or older.

Are women to blame? Women have long been more sensitive to – or less tolerant of – a mediocre relationship than men and are less willing to just ‘wait it out.

Men also share the blame, call it the Viagra Effect. With Viagra, men are able to satisfy younger women, and people are living longer and feel they can get out and still have a life.”

Several other factors include societal acceptance of divorce, increased economic autonomy of women and lengthening life expectancies.

What’s it like to divorce? The Huffington Post writer, Amy Koko, continues:

There were lawyers. . . There were accountants and mediators and a court-required class about parenting for this mother of four teenagers. . . And then finally, the dust settled and there were the two of us . . .

I went back to college and sat among young kids ready to graduate, in creative writing classes. They were amazingly talented kids, yet they were impressed with me! I had something to say and apparently did it in such a way that they wanted to read more. I was chosen to attend a writing seminar with well-known authors at Sarah Lawrence College. Me. A 48-year-old divorcée, living in a dorm room for a week, writing my little heart out.

There are special concerns involved when older couples divorce. As always, information is power, so make a point to seek out experts for guidance.

The Huffington Post article is here.

Relocating with Children Out of State: The Risks

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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

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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

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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

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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

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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

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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.