Month: May 2015

Circumcision & Custody: An Update

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Tuesday, May 26, 2015.

Let’s cut to the meat of the coconut: what does a court do when parents disagree in a custody dispute over circumcising their child? Florida state and federal courts have recently been trying to answer that question.

Last year’s Palm Beach County case made international news, and I wrote about it then. The parents entered into a written agreement to circumcise their baby. Their agreement was later incorporated into a court order.

The father, Nebus, still wants the circumcision performed, but the mother, Hironimus, changed her mind. Now she wants to modify the agreement. Hironimus initially told the Father she didn’t want the child exposed to anesthesia.

After filing her initial complaint though, the mother obtained the support of Intactivists – a group which opposes circumcision – and the Mother’s complaint has grown into a general, anti-circumcision campaign.

The trial judge ordered the enforcement of the parties’ agreement, and the Mother appealed. After losing the appeal, the Mother filed a federal case in the district court, which the Mother later dismissed.

But, with her legal options dwindling, the Mother made a huge error: she stole the child, ignored a court order requiring her to appear in court, and refused to give her consent for the surgery to be performed.

An arrest warrant was issued, but she wasn’t located until May 14 at a Broward County domestic violence shelter where she was hiding with her son. She was put in jail for contempt of court.

Brought before the judge last week, Hironimus again declined to sign a consent form for the surgery, and she was advised she would remain jailed indefinitely.

After the hearing ended, she reconsidered, and signed the consent form. Though the signature solved a contempt charge against her, she still faces a criminal charge of interference with child custody.

The executive director of Intact America, which advocates against circumcision, said the images of a distraught mother signing the form to allow the surgery show how she was “bullied” into it and that she doesn’t truly give her consent.

It is important to note that the judge did not order the circumcision. Instead, the judge enforced the parents’ written agreement. The court enforced it by designating the Father to make the ultimate decision for the circumcision.

This is an important distinction, because if both parents decided not to circumcise their child, the court would not compel it. The court is merely upholding a run-of-the-mill settlement agreement after one parent reneges.

More information can be found in the Sun Sentinel article.

Terrorists & Grandparent Custody Rights

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Grandparent Rights on Thursday, May 21, 2015.

Zachary Chesser threatened “South Park” creators for insulting Muhammad. Then he tried going to Somalia to join Al-Shabab. He brought his son to the airport to avoid suspicion. Does he, or the grandmother, have custody rights?

Zach’s plan didn’t work by the way. He was stopped at the airport. He was arrested and sentenced to 25 years in prison for attempting to support terrorists. He also pleaded guilty to threatening violence online.

Zach now lives in the supermax prison in Florence, Colorado. His wife, a Ugandan diplomat’s daughter named Proscovia Nzabanita, had to leave the United States after pleading guilty to lying about Zach’s plans.

This case raises grandparent custody rights because the fate of Zach’s 5-year old son Talhah is the center of a dispute being heard in a federal appellate court this week.

Zach is suing, Barbara Chesser, his own mother and a lawyer in the Office of the Attorney General, and her partner, and the FBI for money damages over how she learned of his plot to flee the U.S. with Talhah.

He alleges that FBI agents interfered with his parental rights by conspiring with his mother and her partner to ensure that Talhah could not travel to Jordan to live with his wife.

Talhah is being raised by his grandmother in the U.S. The grandmother filed for custody while her son Zach was behind bars waiting trial, and the mother, Nzabanita, was facing deportation. I’ve written about grandparent visitation before.

The Judge dismissed Zach’s lawsuit because there is no expectation of privacy for prison conversations, and no reason to object when the FBI disclosed the conversation to his grandmother. Zach appealed.

Virginia, where the custody case arose, allows grandparents to win custody over parents in certain circumstances. In contrast, grandparent rights to visit their grandchildren over the objections of fit parents do not exist in Florida.

But, Zach’s case is special given that a judge declared Zach and his wife unfit. If this case arose in Florida, there is a good chance that the grandmother could request some form of custodial rights.

Some facts about Zach may make any judge question his fitness. He allegedly converted to Islam after becoming infatuated with a girl. His father said Zach began wearing loin cloth in place of underwear. He threatened to kill South Park creators over a cartoon, involved his son in his attempt to join al Shabab – a group responsible for killing 148 students in Kenya.

On those facts, with no natural parents available to raise Talhah, even Florida would find some form of custodial rights available to the grandmother.

The Fox News report on the case is here.

Does the Sex of your Judge Matter?

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, May 18, 2015.

I am frequently asked by divorce clients whether the sex of the judge, or the mediator or the other side’s divorce lawyer matters. The question is one of gender bias. Gender bias exists throughout society, so why not in the courtroom?

Sex and the Judge

I’ve written about courtroom tips before. If you ever go to court, you will find that the ratio of judges in the Miami-Dade County family division tends to be about a 50/50 split between male and female judges.

Do judges care whether the lawyers and clients who appear before them are male or female? The question really asks are judges biased. The answer is yes . . . to a certain extent. But who isn’t?

Some female judges have a reputation of being pro-female, other female judges have a reputation of being pro-male. The reverse is also true. Some male judges have a reputation of being pro-male, while others are known to be pro-female. It all depends on the personality, upbringing, and personal experiences of your judge.

In examining a judge’s decision which you suspect is gender biased, ask yourself if the result would be the same if the genders of the parties were reversed?

Sex and the Client

All clients make assumptions about the lawyers they hire. Some clients assume that men will be more aggressive and women may be softer in general, and that this preconceived assumption translates to lawyers and judges. From my experience, that is not always true.

I know many female lawyers who are overly aggressive and way too eager to go to court on a matter. I also know many male lawyers who are calm, and looking to resolve disputes not create them. I know of female judges that wouldn’t give you the time of day, and others that would work through the night to resolve a custody case. The difference between the types of attorneys is personality not gender.

Sex and the Lawyer

For me, the gender of the opposing attorney or judges or mediators makes little difference. Some male lawyers are no better, no tougher, or no more difficult to get along with than some female lawyers, judges or mediators.

But, even though the sex of a lawyer, judge or mediator is not very important to me, other qualities about a lawyer are.

Dealing with Gender Bias

Bias affects us all. This is true in the courtroom, the classroom, as well as your bedroom. We all make snap judgments about people based on stereotypes or experiences. It is instinctual to make judgments in this way.

The Florida Supreme Court has authorized a few studies on gender bias in the courtroom. It found that gender bias – discrimination based solely on one’s sex – is a reality. An understanding of how bias operates can help us identify and expose that bias in the courtroom.

The report of the Florida Supreme Court gender bias study is available here.

Job Lock: Modifying Alimony to Pursue a New Job

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Alimony on Tuesday, May 12, 2015.

People who pay alimony can be prevented from changing jobs if the change means a lower salary. The court won’t stop you from changing jobs, but it won’t modify your alimony obligation downward. This means you could be locked into your job.

Prof. Margaret Ryznar, from the University of Indiana, published a research paper on the “job lock” effect of alimony. Professor Ryznar’s paper comes at a good time, as I’ve been writing about alimony a lot while Florida debates alimony reform.

Although Florida alimony reform failed again in 2015, alimony laws have been under attack in Florida for years. Alimony laws used to be generous, including permanent support. These days, only Florida and a few states continue to allow lifelong, permanent alimony.

Maybe one reason for the rise of alimony reform is the increasingly negative view people have of alimony. Clients view alimony as an inflexible and ironclad financial obligation, one that does not allow for nuance in individual cases.

Florida allows any party to modify alimony, whether alimony was agreed to in a marital settlement agreement, or ordered by the court, if the circumstances or the financial ability of either party changes.

However, the change in circumstances must have occurred after the order awarding alimony. Additionally, a modification of alimony requires proving a change in circumstances. If so, a modification in Florida depends on the type and the purpose of the alimony award.

Where a substantial change in circumstances is your reason for modifying alimony, you must show the substantial change in circumstances was not contemplated at the time of the order, and that the change is sufficient, material, involuntary and permanent in nature.

There are many reasons for alimony modification. A court may reduce or terminate alimony if a spouse has entered into a supportive relationship with a person with whom he or she resides. Also, the unemployment and retirement of the paying spouse are valid reasons.

Because courts are likely to be unwilling to modify alimony based on a change of job to a lower salary, the professor’s new research paper proposes a new test that balances the interests of the alimony recipient with those of the payor.

For example, is the change in job designed to avoid paying alimony, or an investment in the future, or is it due to a change in circumstances? If someone takes a pay cut to become mayor or a judge, should their dream job be prevented due to an alimony obligation?

A balancing test made for each case may be what is needed to protect families who rely on support, and release a possible job lock effect of an alimony award. The research paper is available here.

Florida Alimony Reform 2015: R.I.P.

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Alimony on Friday, May 1, 2015.

As I boldly predicted in March, the Florida House would end session early, leave while the Senate was in session, and kill the alimony reform bill. OK, I didn’t predict this at all, but what does this mean for alimony reform?

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As the Palm Beach Post reports in an excellent article which I quote lengthy from:

after a year of wheeling-and-dealing by lawyers, lawmakers and others, the alimony proposal died when the Senate refused to take up the House’s version of the bill.

I’ve written about the differences between the bills before. The House proposal didn’t go as far as Senator Lee wanted. Lee said language about child sharing in the House bill was “poorly drafted” and “designed to create confusion in the courts.”

House Rules Chairman Ritch Workman accused Lee of being a “bully” and “hijacking” the bill for his own reasons.

The Family Law Section of The Florida Bar supported the alimony overhaul but strongly opposed the Senate’s 50-50 timesharing provisions, one of the reasons Scott gave for his veto of the 2013 version.

“Workman accused Lee of having a personal grudge about the issue because of Lee’s own child custody dispute.

“What he cares about is getting back at the judge that didn’t give him 50-50 time share 15 years ago or whenever he got divorced,” he said.

Lee said his views had nothing to do with his own situation.

“I actually have 50-50 custody of my children. So, nice try.”

Lee said the bill was doomed because the House left before he could work out his objections to the time-sharing guidelines.

The truth is he He killed his own bill because he made commitments to an organization [the Florida Bar Family Law Section ed.] that didn’t need a bill.”

Workman accused the Lee of “extortion”. “Don’t come back now and cry me a river over a problem that he created for himself early on in the process. Hopefully there’s a lot of learning that comes out of this,” he said.

Lee said he intends to file the bill again next year if Stargel is not involved. “If she isn’t, it will be Senate Bill 2. I will file it and if they don’t want to move it next year then we’ll move it in 2017 when he’s no longer a member of the Florida Legislature,” Lee said of Workman.

The excellent review in the Palm Beach Post is available here.