Month: February 2015

Pet Custody and Prenups: The ‘Pup Nup’

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Wednesday, February 25, 2015.

Who gets custody of the family dog? There is an uptick in people fighting over their cats and dogs when they divorce. The battle is contentious, as your dog is a family member. Can a prenup help?

I’ve written on this topic before. Your pet dog may be considered by you to be a member of the family, but under Florida law, Brownie the chocolate Lab, is merely personal property to be divided.

Not all states have ruled out a visitation schedule for dogs. For instance, while Texas also views dogs as personal property, in one case a Texas court authorized visitation.

Florida doesn’t because Florida courts are already overwhelmed with the supervision of custody, visitation, and support matters related to the protection of children, that courts cannot undertake the same responsibility as to animals.

Recently, some New York courts have ruled that pet custody divorce disputes are treated differently than other divorce disputes. Unlike a child custody fight, pet custody fights are resolved on a “best for all concerned” standard.

A CBS news report showed many couples have entered into “Pup-Nups” -agreements specifying who gets custody of the pet in the event of a divorce, who pays the veterinary costs, and who is responsible for caring for the family pet.

A prenuptial agreement could make provision for visitation after a break-up. But is it enforceable?

In New Jersey, a court did order shared custody of a pet. After the parties broke off their engagement, the ex-girlfriend allowed her ex-boyfriend to have visitation with Dexter, the dog. The ex-boyfriend refused to return Dexter. The court found that pets are a special category of property and enforced the parties’ oral agreement allowing them to spend alternating, five-week stretches with the dog.

Many states may not uphold pet custody clauses though. In Pennsylvania, for instance, a couple signed a settlement agreement that gave the wife custody of the dog, and provided the husband with visitation. The court explained that Pennsylvania considers dogs to be property, and the Husband’s motion to enforce visitation under the contract was void.

Despite the current law, a pet is a special kind of property. Pets are unique and irreplaceable. Pets are more like antique or valuable art than a generic table, lamp, or toaster.

Another Presumption of Equal Timesharing

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Monday, February 23, 2015.

The Florida legislature passed a bill making a presumption of equal timesharing mandatory. The bill was vetoed by the governor. Is another bill likely? If Nebraska is any indication, the answer is yes.

Last week a Nebraska senator introduced a bill that would encourage judges to more fairly divide custody between separated parents, and requires that judges split custody by at least 65/35, unless there are circumstances in a case that warrantless visitation.

The senator says it’s important for kids to have both parents in their lives.

“Parents and kids alike, you know, thrive off of each other. The things that a young lady or a young man get from their parents are different. Moms and dads are different creatures and so it’s good for them to have exposure to both.”

She added that the bill would also benefit extended family members.

“If you’ve got one parent getting significantly less time with their kids, it also means that their grandparents may be getting less time with their kids. I’ve had several grandmothers call me and say hey, my son only gets one weekend a month with his kids which means that I never see my granddaughters.”

Last year I spoke at the FLAFCC regional workshop discussing the pros and cons of the equal timesharing presumption. I’ve also written about it before.

Fifty-fifty timesharing between parents sounds 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:


Each year, cases are tied up in court to establish a right to see their children that they would automatically have if they were married.

An equal time presumption promote 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.


Requiring every family to have equal time-sharing 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.

With the 2015 Legislative session starting next month, and bills in committee, this is an interesting area to keep your eye on.

The article on Nebraska’s new bill can be found here.

Facebook & Divorce

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Sunday, February 8, 2015.

Facebook has revolutionized the way we form and keep relationships. However, Facebook envy could actually ruin a relationship and lead to divorce. This is especially true for new marriages, and new research may prove it. There is no doubt Facebook evidence pops up in more trials.

Facebook users were asked to describe how often they used Facebook and how conflict arose as a result of Facebook use. The results found high levels of Facebook use significantly predicted Facebook-related conflict, which then significantly predicted cheating, breakups, and divorce.

“Previous research has shown that the more a person in a romantic relationship uses Facebook, the more likely they are to monitor their partner’s Facebook activity more stringently, which can lead to feelings of jealousy”.

The study also found that excessive Facebook users are more likely to connect or reconnect with other Facebook users, including previous partners, which may lead to emotional and physical cheating.

These findings held only for couples who had been in relationships of three years or less“. “This suggests that Facebook may be a threat to relationships that are not fully matured. On the other hand, participants who have been in relationships for longer than three years may not use Facebook as often, or may have more matured relationships, and therefore Facebook use may not be a threat or concern.

I recently published an article about Facebook evidence and divorce. I wrote about the benefits and obstacles in gathering and using Facebook evidence at trial.

After all, the evidence can be very helpful:

Husband . . . [posts] his single, childless status while seeking primary custody of said nonexistent children.

Mom denies in court that she smokes marijuana but posts partying, pot-smoking photos of herself on Facebook

Remember, the next time you log in, what you do in the digital world could have a very impact in the real world.

The University of Missouri study can be read here.

Mickey, Measles & Custody

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Wednesday, February 4, 2015.

The recent outbreak at Disneyland has resulted in more measles cases in one month than the typical number in a year, and has spread it to 14 states. This highlights the link between vaccinating children and custody.

Because of the return of vaccine preventable diseases – some of which were eliminated decades ago – a national discussion is occurring about vaccinating children.

But can the refusal to vaccinate impact your custody case?

I’ve blogged about vaccines before, not vaccinating a child can be detrimental:

– Contracting measles or whooping cough is harmful to a child.

– Public health and school officials send unvaccinated children home from school during outbreaks.

– Unvaccinated children are barred from birthday parties and play dates.

Why do a minority of parents not vaccinate? One reason is fear of autism. The anti-vaccination hysteria can be traced back to a paper by Andrew Wakefield published in the disgraced British medical journal The Lancet.

Wakefield claimed the measles-mumps-rubella (MMR) vaccine was linked to autism. His study was later deemed “fraudulent” and Wakefield was stripped of his medical license.

But the damage was done. MMR vaccination rates declined and California officials have recently determined that the vast majority of those infected never received the MMR vaccine.

The minority of children who are not vaccinated have a big impact. The concept is called herd immunity. If vaccination rates are high, vaccinated people act as a barrier and reduce the risk of infection for people who can’t be immunized.

In Florida, there are two leading cases in which the issue over custody and vaccination was brought to trial and appeal. My new article briefly examines Florida’s parental responsibility statute, including the concept of ultimate authority.

The two Florida cases in which the decision to vaccinate a child was an issue brought to trial is also discussed, and the article traces the development of religion as a factor in parental responsibility cases in Florida.

The article can be read here.

Spanish Prohibited: Custody & Freedom of Speech

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Sunday, February 1, 2015.

Florida courts have a lot of power to protect children in custody cases. Does that mean a judge can order you not to speak to your child in Spanish? An appellate court outside Tampa just answered this question, balancing child protection and freedom of speech.

In Perez v. Fay, a mother went from being the primary caregiver to having only supervised time-sharing twice weekly for 4-hours under the nose of a timesharing supervisor. The trial judge also allowed her daily telephone calls with her daughter, supervised by the Father.

The Mother was Venezuelan, and because the Father did not speak Spanish, the court ordered: “Under no circumstances shall the Mother speak Spanish to the child.”

The judge was concerned about the Mother’s comments, after the Mother “whisked” the child away from the time-sharing supervisor in an earlier incident, and had a “private” conversation with her in a public bathroom. She was also bipolar and convicted of two crimes.

Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy. The Second District Court of Appeals, which covers Tampa and Southwest Florida, reversed the restriction.

Two of the three judges overturned the order on technical grounds. But it was Judge Wallace who makes the Constitutional argument in an excellent concurring (separate) opinion:

The trial court’s order also violates the Mother’s most basic rights. More than ninety years ago, the United States Supreme Court declared that the agents of the state may not tell parents what languages they may teach their children.

Here, the trial court’s order improperly infringes on the Mother’s constitutional right to determine the language or languages about which her child may receive instruction.

In addition, the Florida Constitution guarantees its citizens the right of privacy . . . “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.”

Undoubtedly, the sphere of private life in which one must be let alone, free from governmental intrusion, includes the right to speak with one’s child in the language of one’s choosing and not to have that choice dictated by the agents of the state.

Sadly, the trial court’s order in this case prohibiting the Mother from speaking Spanish to her daughter is not an isolated incident. One commentator reports that trial judges in Texas and Nebraska have issued similar edicts prohibiting parents from speaking Spanish to their children.

In my view, Florida’s trial courts have no business telling parents what languages they must speak or must not speak with their children.

More analysis about the case comes from the Washington Post, Volokh Conspiracy.

The opinion of Perez v. Fay can be read here.