Month: February 2022

Florida Grandparent Visitation Bill

Posted by Ron Kauffman on

Good news for Florida grandparents. The Florida House recently passed a visitation bill with profound meaning for Florida grandparents who have become estranged from their grandchildren after a tragedy. A companion bill, SB 1408, is awaiting a final vote on the Senate calendar.

Grandparent Visitation

Markel Act in the House

Currently in Florida, a grandparent can only be awarded visitation rights with their grandchildren under extremely limited circumstances, such as when a child’s parents are both deceased, missing, or in a permanent vegetative state.

However, when only one parent is deceased, missing, or in a permanent vegetative state, the other parent must have been convicted of a felony or a violent offense in order for a grandparent to be able to petition for visitation.

Additionally, a court would have to find that the grandparent has established a prima facie case that the surviving parent is unfit or poses a danger of significant harm to the child to be entitled to visitation. If that burden is not met, the court must dismiss the grandparent’s petition.

HB 1119 dramatically changes the law of grandparent visitation in Florida. It expands the ability for a grandparent to petition for visitation rights of his or her grandchild in certain narrow circumstances.
The bill does this by changing Florida Statutes to create a rebuttable presumption for granting reasonable visitation with the petitioning grandparent or step-grandparent under certain circumstances.

If a court finds that one parent of a child has been held criminally or civilly liable for the death of the other parent of the child, a rebuttable presumption arises that the grandparent who is the parent of the child’s deceased parent is entitled to reasonable visitation with the grandchild.

The effort behind the bill, informally referred to as “The Markel Act” was inspired in part by the 2014 murder of FSU law professor Dan Markel, who was hunted down and shot in the head by a hitman shortly after dropping Dan dropped his two sons off at preschool.

Prosecutors have publicly identified Markel’s ex-wife, Wendi Adelson, as an alleged “co-conspirator” to the murder, along with her mother and brother. Law enforcement says Adelson’s motive was to relocate to South Florida amid custody battles with Markel. While Adelson family members have not been arrested yet, three others have — the hitman, who was found guilty and sentenced to life; his accomplice, who pleaded guilty and confessed who had hired them; and their intermediary, who faces a retrial in May.

The bill passed the House with a vote of 112-3.

Florida Grandparent Visitation

I have written extensively on grandparent visitation in Florida. In early common law, there was never a right to visitation by non-parents, and Florida has clung to that tradition. That is ironic, as a lot of elderly voters reside in Florida, and politicians have been trying to create visitation rights to grandparent voters here.

Beginning in 1978, the Florida legislature started making changes to the Florida Statutes that granted enforceable rights to visit their grandchildren.

The Florida Supreme Court built a massive wall blocking Florida grandparent visitation rights, explaining that parenting is protected by the right to privacy, a fundamental right, and any intrusion upon that right must be justified by a compelling state interest. In Florida, that compelling state interest was harm to the child:

“[W]e hold that the [s]tate may not intrude upon the parents’ fundamental right to raise their children except in cases where the child is threatened with harm.”

Not too long ago, the Florida Supreme Court held that under the federal Parental Kidnapping Prevention Act any custody determination or visitation determination – including grandparent rights – are protected and enforceable under the PKPA. And, to the extent that the PKPA conflicts with Florida law, the PKPA controls under the supremacy clause of the U.S. Constitution because it is a federal law.

Senate Grandparent Visitation

The Senate companion bill unanimously cleared its committees and heads next to the Senate Floor. Both bills have bipartisan support. Specifically, the Senate Bill creates a presumption that a court may award a grandparent reasonable visitation with a grandchild in cases where the court has found that one parent has been held criminally or civilly liable for the death of the other parent of the grandchild unless not in the child’s best interest.

For five years, while the wheels of justice turned, Markel’s parents, Ruth and Phil, were kept from contact with their grandsons. As Ruth commented:

“We have profound gratitude for the Florida House, in particular Speaker Chris Sprowls, Rep. Jackie Toledo, and the other co-sponsors, for their vision and leadership. There’s nothing more important to us than leaving a record of how deeply we’ve tried to reconnect with our grandsons. Out of our tragedy, we hope to create something meaningful for other families to visit their grandchildren. Today marks a powerful day in this journey.”

Toledo tried to downplay the impact on parent rights by commenting that the Senate was not looking at ways to dismantle the rights of parents but to correct the problem in law when one parent retains custody even when implicated in the death of their co-parent.

Justice for Dan, a grassroots group of friends and allies, praises Speaker Sprowls, the bill sponsors, and members for their action for what it deems a clear message: murder can’t be a solution to custody battles.

The Florida Politics article is here.

Social Media and Kanye’s Divorce

Posted by Ron Kauffman on

Anyone wanting to know whether your social media posts could be used as evidence in your divorce should be following recent news. You would learn that Kanye West’s social media posts would likely become probative exhibits in Kanye’s divorce and child custody case.

Social Media Divorce

Meta Divorce

Kardashian, 41, filed for divorce from West, 44, in February 2021 after seven years of marriage. The two share four children together.

Some news outlets have been reporting that West has been going after Kardashian’s new boyfriend, Pete Davidson, in a flurry of Instagram posts, which Kanye later tries to delete.

Kanye has also shared text messages from Kardashian on his account and speaks about their divorce on the social media app.

When it comes to the divorce proceedings, social media posts are “fair game” and can be used in custody battles. Kanye West’s rants about his divorce could hurt his arguments on any custody and other parenting issues since he is clearly willing to put his own needs to express his feelings over their best interests

Florida Social Media and Divorce

I’ve written about the widespread use of social media in society, and how that impacts family law cases – especially when it comes to authenticating documents in a divorce court.

Some exhibits are so trustworthy they don’t even require a witness to authenticate. Evidence Rule 201 lists matters which a court must judicially notice, meaning a judge does not have discretion but to admit indisputable evidence.

The list is short and includes laws of the Congress and Florida Legislature; Florida statewide rules of court, rules of United States courts, and U.S. Supreme Court rules.

Rule 202 includes even more matters, but also provides judges leeway in deciding whether or not to take judicial notice. For example, the statute allows a court to take judicial notice of facts that are not subject to dispute because they are “generally known within the territorial jurisdiction of the court”, and facts that are not subject to dispute because they are “capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned.”

But with the widespread use of fake social media accounts, you have to start to wonder whether the genuineness assumption of evidence in family court still stands. Anyone can set up a fake Kanye Instagram account.

The increasing use of electronic evidence at trial, and the ease with which it is impersonated and manipulated, pressures us to bolster foundational evidence more than ever.

Ye

Divorce proceedings typically entail a decision on custody, although Kardashian and West have agreed on joint custody of their children to date. However, if there were to be a custody battle, social media posts that don’t foster a healthy parent-child relationship could affect a judge’s decision.

Some social media posts can reflect a parent’s failure to facilitate and encourage a
close and continuing parent-child relationship with the other parent and that can impact the court’s ultimate determination of shared parental responsibility and timesharing.

Criticizing the other parent’s parenting, disparaging on social media a parent’s new significant other, especially when children are old enough to access and read social media, does not help facilitate a close and continuing parent-child relationship.

If one parent is disparaging the other parent on social media, that could be used as proof that Kanye, for example, is not willing to facilitate a close relationship between the children and Ms. Kardashian when he is with the children.

For his part, West has addressed criticism from many that he was attempting to besmirch Kardashian by divulging private messages and maintained that he has owned up to the mistake and is learning to better manage his impulses.

“Thank everybody for supporting me,” West recently wrote. “I know sharing screen shots was jarring and came off as harassing Kim. I take accountability. I’m still learning in real time. I don’t have all the answers. To be good leader is to be a good listener.”

In a separate post, West, also known as “Ye,” shared a screenshot of a comment that read: “That’s what a real man does; fight for your family Ye.”

“THANK YOU GUYS FOR YOUR SUPPORT OF MY FAMILY,” West wrote for his 12.6 million followers. “MY FAMILY MEANS MORE TO ME THAN ANY OTHER ACCOMPLISHMENT IN LIFE.”

Kim could try asking the court for a gag order restricting both parties from airing their grievances publicly during the divorce, but free speech is valued in this country.

The FOX news article is here.

 

Divorce is Crypto

Posted by Ron Kauffman on

Divorce is crypto when digital cryptocurrencies like Bitcoin are involved. Be prepared for wild market price swings – as much as 40% – hard to trace assets on a decentralized network, the bankruptcy of the crypto currency exchange itself, and the ever-present risk of waste due to your spouse’s fraud.

Crypto divorce

Slum Dogecoin Millionaire

As the New York Times reports, Erica served her husband Francis with divorce papers and an automatic temporary restraining order that, among other things, prohibited him from transferring, concealing, or disposing of property without her written consent or court order.

However, after the divorce was filed, Francis initiated three bitcoin-related transactions. He wired money to Mt. Gox Company, a Japanese bitcoin exchange, to buy bitcoins. Then he arranged for his friends to buy bitcoins from Mt. Gox on his behalf without at the time disclosing the purchases.

Mt. Gox then ran into a few “regulatory difficulties” with the U.S. government. Federal agents froze bank accounts associated with Mt. Gox, seized millions of dollars, Mt. Gox suspended withdrawals, and went on to lose hundreds of thousands of bitcoins to hacking, embezzlement, or both.

As one expert testified at trial:

And my personal opinion at the time was only an idiot would leave his Bitcoins on Mt. Gox.

After entry of the divorce, Erica sought her half of the marital bitcoins. Only then did Francis disclose that the bitcoins were tied up in the Mt. Gox bankruptcy.

Florida Equitable Distribution

I’ve written about equitable distribution in Florida before. In divorce proceedings, in addition to all other remedies available to a court to do equity between the parties, a court must set apart to each spouse that spouse’s non-marital assets and liabilities. and in distributing marital assets, a family court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal one.

In addition, many courts, including here in Miami, have Administrative Orders limiting what spouses can do once a divorce is filed. Similar to California’s automatic restraining, neither spouse can conceal, damage, or dispose of marital assets, waste jointly owned funds, and the use funds after separation must be accounted for and justified.

Put plainly, both parties are accountable for all money in their possession after separation and during the divorce proceedings and any party who violates these rules will be required to render an accounting and may be later sanctioned for wasting a marital asset.

Under Florida law, misconduct in the use of funds causing the loss of funds can cause a court to assign the value of the loss into the property division scheme. There has to be evidence of intentional dissipation or destruction of the asset which resulted from intentional misconduct.

Brother, Can You Spare a Bitcoin

A cryptocurrency is a digital or virtual currency secured by cryptography, which makes it nearly impossible to counterfeit or double-spend. Many cryptocurrencies are decentralized networks based on blockchain technology. They are historically not issued by a central government, rendering them theoretically immune to government interference or manipulation.

In divorce cases, similar to the days of hiding cash in a mattress, not reporting cryptos, or hiding them in online wallets, can make identifying and valuing cryptos difficult. But digital assets are not untraceable. Transactions are recorded on public ledgers called blockchains, enabling some analysts to follow the money.

There are forensic investigators who can track the movement of cryptocurrencies like Bitcoin from online exchanges to digital wallets. In multiple cases they have been able to trace millions in cryptocurrency.

Back in California, in addition to hiding his bitcoin purchases and using friends as proxies, Francis’s failure to inform Erica about the Mt. Gox bankruptcy breached his fiduciary duty. Had he disclosed these facts Erica could have objected or protected her interest in the bitcoins.

The California Court of Appeal affirmed the trial court ruling that Francis transfer $22,500 in cash and 249.445 additional bitcoins to Erica, along with the corresponding bitcoin gold and bitcoin cash. Francis was also ordered to pay Erica’s attorneys’ fees and costs incurred in bringing her motion.

The New York Times article is here.

 

Equal Timesharing Bill Blowing through Tallahassee

Posted by Ron Kauffman on

The winds of change are blowing as the latest equal timesharing bill, CS/HB 1395, moves through Tallahassee. Many parents, lawyers, psychologists and other experts wonder whether Florida will start requiring equal timesharing in all child custody cases.

Equal Timesharing

Typhoon Timesharing

It seems as if each new Florida legislative season has turned into a new hurricane season, dropping invasive lobbyists into Tallahassee to change our native, home-grown child custody and alimony laws.

Not surprisingly, once again the equal timesharing bill is hidden inside an alimony reform bill. Regarding alimony, Florida currently recognizes five main types of alimony: temporary, bridge-the-gap, rehabilitative, durational, and permanent.

In determining the type, amount, duration, and later modification or termination of an alimony award, the court has broad discretion but may only award alimony after initially determining that one spouse needs alimony and the other spouse is able to pay alimony.

For alimony purposes, this year’s House Bill increases presumptions relating to the length of a marriage, changes the types of alimony available, prohibits an award of alimony if the payor has met certain requirements for retirement before filing for divorce and prohibits an award of permanent alimony.

But few people – other than the experts and lawyers studying the bill – know that the alimony reform bill also creates a presumption that equal timesharing is in the best interest of a minor child. If passed, House Bill 1395, would codify into law a presumption of 50/50 timesharing between divorced parents. While this sounds fair, it poses a real risk to children.

Florida Timesharing

I’ve written on the legislative efforts to change to an equal timesharing state before. Historically, Florida courts have consistently ruled that a parent’s desire and right to the companionship, care, custody, and management of his or her children is an important interest that warrants deference and, absent a powerful countervailing interest, protection.

Florida law provides broad guidelines to assist courts in determining parenting and time-sharing of children based on the best interests of the child standard. It has been the public policy of Florida that each child has frequent and continuing contact with both parents after separation or divorce, and to encourage parents to share the rights and responsibilities, and joys, of childrearing.

To meet that state policy, there has not been a presumption for or against the father or mother of the child or for or against any specific timesharing schedule when creating or modifying the parenting plan of the child, and no presumption in favor of a specific time-sharing schedule when the parties are unable to agree.

Just as each divorce is unique, and is treated in a unique way, each timesharing schedule for a family is treated in a unique way for that family. By taking each case individually, you have a better chance of creating a parenting plan that best fits the children involved.

Winds of Change?

But now Florida is facing a Category 5 change. House Bill 1395 amends Florida law to create a presumption that equal time-sharing (commonly referred to as “50/50 time-sharing”) is in the best interests of a minor child common to both parties unless otherwise agreed to by the parties. This would be for every case, instead of the case-by-case basis looking into the details of what is best for kids.

This year’s legislative session started on January 11, 2022 and is scheduled to wrap up on March 11, 2022. The bill provides an effective date of July 1, 2022.

The Tallahassee Democrat article is here.