Year: 2014

Custody and Vaccination: New Case in New York City

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Monday, June 30, 2014.

Florida allows exemptions from vaccinating your child if it conflicts with your religious beliefs. Could a court bar your child from school if legally unvaccinated?

New York just decided that case. As the New York Times reports:

A federal judge recently upheld New York City’s policy, which bars unvaccinated children from public schools when another student has a vaccine-preventable disease.

Two of the families in the New York lawsuit – who had received religious exemptions – challenged the city’s policy on barring their children, saying it amounted to a violation of their right to religious freedom equal protection.

“Disease is pestilence and pestilence is from the devil. The devil is germs and disease, which is cancer and any of those things that can take you down. But if you trust in the Lord, these things cannot come near you.

In rejecting the religious argument, the federal judge cited to the U.S. Supreme Court case of Jacobson v. Mass 1905, which found that Cambridge, Massachusetts’ compulsory vaccinations for smallpox was a lawful exercise of police powers.

The U.S. District Judge wrote that the U.S. Supreme Court strongly suggested:

religious objectors are not constitutionally exempt from vaccinations.

There are major concerns recently by public health officials that some defeated diseases are experiencing a resurgence in areas with low vaccination rates.

The religious families’ lawyer, in criticizing the decision, said that the 1905 case should not be relevant because:

there’s no way the 1905 Supreme Court anticipated that children would be subjected to the vaccines they must get today.

Though New York City schools have an overall immunization rate around 97%, 37 private schools were below 70%.

I’ve written about custody and vaccinations before. Health experts believe that above a certain immunization percentage rate, outbreaks are limited because a disease cannot spread to enough people, a phenomenon known as “herd immunity.”

Widespread vaccinations have practically eliminated certain highly contagious diseases, which used to plague the United States.

Now however, there were 477 measles cases reported this year, the worst year-to-date count since 1994, according to the Centers for Disease Control and Prevention.

“Diseases have a way of finding our vulnerabilities, the kinks in our armor.”

The New York Times article can be read here.

Same-Sex Marriage Ban Struck Down by 10th Circuit

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

Another state’s same-sex divorce ban falls. This case is worth noticing. The US Court of Appeals for the Tenth Circuit is the first federal appellate court to strike down a state law banning same-sex after Windsor.

I’ve written many times before about all of the federal trial court cases around the country which have all been declaring state laws bans on same-sex marriages unconstitutional.

This latest case is the most important since the U.S. Supreme Court case in Windsor, because it is the first ruling by a federal appeals court.

Our commitment as Americans to the principles of liberty, due process of law, and equal protection of the laws is made live by our adherence to the Constitution of the United States of America. Historical challenges to these principles ultimately culminated in the adoption of the Fourteenth Amendment nearly one-and-a-half centuries ago. This Amendment extends the guarantees of due process and equal protection to every person in every State of the Union. Those very principles are at issue yet again in this marriage equality appeal.

There was also a strong dissent. The Judge dissenting would have held that a state ban on same-sex marriage does not violate the Constitution, saying there is not a consensus about either the implications of Windsor or the same-sex marriage issue more generally.

“We should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation of the Fourteenth Amendment.”

The majority ruled that the Utah law is unconstitutional because it restricts the “fundamental” right to marriage under the Fourteenth Amendment, which subjects it to tight “strict scrutiny.”

The three interests asserted by Utah – (1) “fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children”; (2) “children being raised by their biological mothers and fathers-or at least by a married mother and father-in a stable home”; and (3) “ensuring adequate reproduction” were held compelling, but the law was not “narrowly tailored to their advancement.”

The 10th Circuit’s opinion in Kitchen v. Herbert can be read here.

Should Your Prenup Agreement Have a Social Media Clause?

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On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Monday, June 23, 2014.

The Onion, a satirical website, jokingly reported some property divisions include fines as steep as $50,000 for posting an unflattering picture of their partner on Facebook. It got me to thinking, what if this wasn’t satire?

Prenuptial agreements should include a “social media clause”. You know, a clause that protects you from a public relations disaster because your wife liked that cute picture of you passed out on vacation. Or one that prevents your husband from uploading a picture of you in the bathroom because he thought it was funny.

You and your partner could agree not to post, tweet, or otherwise share certain positive, negative, insulting, embarrassing, or flattering images or content. While married, you have control over what gets posted, but after a angry breakup, it could be “anything goes.”

It would be helpful to have a guarantee that a bitter Ex won’t publicly humiliate you on a world-wide scale, causing you reputational harm, and making it harder to meet someone new, or even hurting your career.

As Manhattan-based psychotherapist Diane Spear puts it:

“You could see a side of someone you wouldn’t have believed existed when you’re flushed with the romance and newness of the marriage,” said Spear.

Or as Fox News reports:

If you’re marrying someone and you’re concerned that they’re going to put a nude picture of you on the Internet, and you have to put that into a prenup – there’s probably a problem in the relationship before you’re even getting married.

The Fox News report can be found here.

The far funnier Onion report here.

The One Day Divorce and Other Self Help Programs

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Friday, June 20, 2014.

Everyone knows divorce can be a long process. San Diego has a new program to help you complete your divorce in 1 day. Is there a problem with court-created ‘do it yourself’ divorces?

A New York Times reporter discovered a big one:

A real estate broker in Manhattan, used a $50 online do-it-yourself divorce kit when she and her husband of more than nine years decided to part ways. She figured they could save money by avoiding lawyers.

But after the courthouse clerk rejected her filing because the document formatting was incorrect, she had the paperwork reviewed by a lawyer, who informed her that if she waited six more months to file, she would be entitled to a portion of her husband’s pension benefits.

“If I had to do it over, I would hire an attorney immediately,” she said.

Do it yourself divorces only seem to reduce the cost and time of a divorce. However, people overwhelmingly are unaware of what the law entitles them to, and they lose out on tens of thousands of dollars, and the process can end up taking longer than it would otherwise.

“It’s like going to WebMD and deciding to treat yourself,” said Michael Stutman, a family law specialist in New York.

In Florida, a large number of divorcing people go it alone. Typically, people file initial divorce paperwork themselves, but don’t know what to do next, so their file languishes for months. Budget cuts in our state courts have reduced personnel and made the problem worse.

San Diego’s introduction of a one-day divorce program for people who can’t afford or don’t want a lawyer was not intended to protect your rights, the program was designed to solve a court administrative problem by flushing your case as quickly as possible.

Also, the program doesn’t mean a divorce is truly started and completed in a single day – residency and notification requirements have to be met first. You must, for example, already have filed a divorce petition and served your spouse with divorce papers to participate.

Florida does not offer a One-Day Divorce yet, but in Miami-Dade County the court offers a Self Help Program to provide necessary forms for a fee. But the program is designed to reduce delays caused by insufficient filings.

You are strongly cautioned that if you have any assets or may be paying support for a while, that you avoid one-day programs and self-help clinics like the plague.

You can read more about San Diego’s pilot program by clicking this link to NBC San Diego

Can Using Legal Marijuana hurt your Custody Case?

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Tuesday, June 17, 2014.

Colorado legalized marijuana for recreational use. 20 states legalized pot for medical treatment. If pot is legal, can it still be a factor in your child custody case?

All drugs in the U.S., are classified into 5 distinct schedules depending upon the drug’s acceptable medical use, and the drug’s abuse or dependency potential.

Schedule I drugs have no currently accepted medical use, have a high potential for abuse, and are considered the most dangerous with potentially severe psychological or physical dependence.

Believe it or not, marijuana is classified under the Controlled Substances Act as a Schedule I drug. Along with heroin and LSD, marijuana is considered one of the most dangerous drugs under federal law.

Although illegal under federal law, what if pot was legal in your state? Could it still be a factor in your custody case? These questions are worth asking because over 20 states have legalized the medical use of marijuana, and it may only be a matter of time before Florida does.

While the legal standard for parental responsibility in Florida is ‘the best interest of the child’ test, maintaining an environment for a child free from substance abuse is a factor courts must consider in determining the best interests of a child.

In Colorado, pot smoking parents fear the legal use of marijuana can still be used to take their children away. Anti-marijuana-legalization parents argue that pot in a home threatens kids.

“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”.

The Colorado Court of Appeals sided with a marijuana-using dad who lost visitation rights though he never used the drug around his daughter. The court reversed a lower court’s decision that the father couldn’t have unsupervised visitation until passing a drug test.

In Florida, we side with federal law, so marijuana use is illegal. However, many other states have legalized it in opposition to federal law. If you are involved in a child custody dispute, legal pot smoking is a very murky area of law to be aware of.

More on the controversy over legal marijuana and child custody can be found in the Washington Post.

Father’s Rights on Father’s Day

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Saturday, June 14, 2014.

Happy Father’s Day! There is a feeling among fathers that courts assume the mother is the only real parent. Men fear losing their kids in divorce court. Many think divorce courts are biased towards women. Are they right?

As Slate reports:

There’s a real perception – even women share it – that courts are unfair to fathers,” says Ira Ellman, a custody expert at Arizona State University. But in fact the great revolution in family court over the past 40 years or so has been the movement away from the presumption that mothers should be the main, or even sole, caretakers for their children.

Cases which involve fathers who never married the mothers are relatively new to the courts, but divorce courts have a long history of trying to keep up with changing gender dynamics.

The legal presumption that mothers should automatically get custody of children what in Florida we used to call the “tender years” doctrine has been abolished. Now Florida has a presumption of shared parental responsibility.

Are men’s rights activists right when they argue mother preference still exists? According to one of the most thorough surveys of child custody outcomes, which looked at Wisconsin between 1996 and 2007, the percentage of divorce cases in which the mother got sole custody dropped to 45.7% from 60.4%.

A recent survey by the American Academy of Matrimonial Lawyers shows that an increasing number of moms will be setting aside time to sign child support and alimony checks. Overall, 56% of the nation’s top divorce attorneys say that they have seen an increase in the number of mothers paying child support during the past three years, while 47% also note a rise in women being responsible for alimony throughout the same time period.

The real inequality in family courts these days may not be gender bias, but income bias. Wealthy men can end up paying very little in child support if they fight for substantial or majority timesharing. For poor men though, who may lack the ability to care for their children most of the time and pay a larger percentage of their salary as child support, the law may seem stacked against them.

For more on the Slate story, click here.

Taxing Parents Who Won’t Agree to a Child Support Amount

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On behalf of Ronald H. Kauffman, P.A. posted in Child Support on Sunday, June 1, 2014.

If parents can’t agree to a divorce figure in Britain, the paying parent will have a 20% fee added to their child support and the payee will pay 4%. Oh, and it costs about $35 up front to register. What is happening in the UK?

As the BBC reports, thousands of letters are to be sent to single parents in Britain informing them of changes to their child support. The government wants parents to agree on child support “amicably” or pay the state.

Under the old British system, many single parents used the Child Support Agency (CSA) to sort out maintenance payments but it will soon be abolished.

A government spokesman said the old CSA was using an IT system that was “totally inadequate and notoriously riddled with defects”, and as such it was costing £74 million per annum to run in operating costs alone.

The CSA “took responsibility away from parents, encouraging conflict and hostility at huge expense to the taxpayer“.

So, the British are trying to improve service by encouraging people to come to voluntary arrangements, and if that is not possible – and the new statutory service is used – then both parents will have to pay.

The problems with the new system are easy to see. Most parents are able to agree in private to a child support calculation. However many other parents can’t unless a state agency steps in to find and use coercive methods to get parents to pay.

“We’re very concerned that closing CSA cases and bringing in charges may deter some parents from making new child maintenance agreements or pressure single parents into unstable arrangements, and children will lose out on vital support.”

There is no question that our state child support enforcement agencies do a tremendous job of getting parents to support their children. Is shifting some of the costs of enforcement on to both parents the wave of the future? We former colonists will have to keep watching the motherland to see.

The BBC article on the new child support system is available here.

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.