Month: October 2022

Child Custody and Transgender Identity

Posted by Ron Kauffman on

A recent child custody case in Indiana tries to balance the parents’ constitutional rights to free speech and religion against a child’s transgender identity. The state of Indiana removed a child from the parents over how the parents dealt with their child’s transgender identity. Then, the Court of Appeals of Indiana was asked to weigh in.

Custody Transgender Identity

Custody in the Crossroads of America

The case started in May 2021, when the Department of Child Services (“DCS”) received a report alleging that the mother was verbally and emotionally abusing her 16-year-old child by using rude and demeaning language regarding the teen’s transgender identity. As a result, the teenager had thoughts of self-harm.

Ten days later, DCS received a second report alleging both parents were involved in being verbally and emotionally abusive because they do not accept their child’s transgender identity — and the abuse was getting worse.

A case manager investigated, and reported the child had been suffering from an eating disorder. The other findings included that the parents had withdrawn the child from school and DCS was unaware of the intent to enroll the child in a new school; they had discontinued the child’s therapy; the child did not feel mentally and/or emotionally safe , and would be more likely to have thoughts of self-harm and suicide if returned.

DCS filed a petition alleging the child’s physical or mental condition was seriously impaired or seriously endangered due to the parents’ neglect and/or the child’s physical or mental health was seriously endangered due to injury by the parents’ acts or omissions.

The juvenile court issued an order finding that it was in the child’s best interest to be removed from the home due to the parents’ “inability, refusal or neglect to provide shelter, care, and/or supervision at the present time.”

At the close of a subsequent hearing, the court informed the parties that it would leave in place its earlier order prohibiting the parents from discussing the child’s transgender identity during visitation, found the child needed services and therapy, in which the parents were ordered to participate and ordered that the child would remain in the current home or placement with DCS supervision.

The parents appealed, claiming the order was clearly erroneous, violated their constitutional rights to the care, custody and control of their child, and violated their rights to the free exercise of religion and freedom of speech.

Florida Child Custody

I’ve written about child custody and issues involving the constitution before, primarily between the parents. The case in Indiana however, is not between the child’s parents, but between the parents and the State of Indiana.

Other cases can involve disputes between parents over how to handle the social gender transition of a child. In Florida shared parental responsibility is the preferred relationship between parents. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

Issues relating to a child’s health 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 the child.

Determining the best interests of a child is based on an evaluation of statutory factors, and one equitable catch-all factor, affecting the welfare and interests of the child and the circumstances of the child’s family.

The statute authorizes one parent to have ultimate responsibility for certain decisions. For example, health care is an area of ultimate responsibility a court can award. When a decision on health goes to trial, the court grants one parent ultimate responsibility to make that decision.

Hoosiers or Abusers?

The Court of Appeals rejected the parents’ religious freedom arguments. The Father testified that the parents were not allowed to affirm their child’s transgender identity, or use their child’s preferred pronouns, based on their sincerely held religious beliefs.

But the appellate court found that the order was based on the child’s medical and psychological needs, not on the parents’ disagreement with the child’s transgender identity. Put differently, the child’s removal was not based on the fact the parents didn’t accept the child’s transgender identity, and their future reunification was not contingent on the parents violating their religious beliefs or being forced to affirm the child’s transgender identity.

Accordingly, the order did not impose a substantial burden on their free exercise of religion. Moreover, the appellate panel found that protecting the child’s health and welfare was a compelling interest justifying state action that is contrary to the parents’ religious beliefs.

The Court of Appeals also rejected the parents’ freedom of speech arguments. The trial court recognized that the child’s eating disorder and self-isolation were connected to the discord at home about the child’s transgender identity.

Accordingly, the trial court’s limitation on the parents from discussing the topic directly targets the State’s compelling interest in addressing the child’s eating disorder and psychological health, as opposed to the content of the parents’ speech itself.

The order was found to be narrowly tailored because it restricted the parents from discussing the topic with the child only during visitation. However, the order permitted the topic to be discussed in family therapy.

Limiting the parents to only discussing the issue in family therapy was seen to allow the family to work on conflict management, so that they will eventually be able to safely talk about it outside of therapy. Accordingly, the order restricting conversation of this topic outside of family therapy was a permissible prior restraint.

The Court of Appeals of Indiana opinion is here.

Presumption of Paternity is Big in Japan

Posted by Ron Kauffman on

In family law, the presumption of paternity is one of the strongest in Florida. Japan is about to change its 19th-century law about the paternity. The change in the law of paternity for children born after divorce will help Japanese children facing difficulties getting healthcare and education.

Paternity Japan

Spirited Away

Under a Japanese 1898 Civil Code that’s still in force, a child born to a woman within 300 days of divorce is considered to be that of her former husband, even if she has remarried.

Many women opt not to register their children rather than comply with the regulation, especially in cases of domestic abuse. The country’s practice of registering its citizens under household units has hampered attempts by campaigners to gain the right for married couples to retain separate names, as well as to introduce same-sex marriage.

Japan consistently lags other developed countries in terms of gender equality. It was ranked 116th out of 146 countries in the annual Global Gender Gap Report released by the World Economic Forum in July.

Japan is also one of 32 countries that maintain discriminatory restrictions on remarriage for women after divorce, according to the Organization for Economic Co-operation and Development.

According to a lawyer who succeeded in getting the remarriage ban for women shortened to 100 days from six months in a 2015 Supreme Court ruling, the amendment also indicates a belated shift toward prioritizing the rights of children.

Japan’s Cabinet approved draft legislation Friday to scrap a rule that has prevented the new husband of a woman who has remarried from assuming paternity over a child born within some 10 months of the woman’s divorce from her previous partner.

Florida Paternity Presumption

I have written about Florida family law matters, including paternity changes, before. In Florida, the law presumes that the husband of the biological mother of a child is the child’s legal father. This presumption is one of the strongest rebuttable presumptions known to law, and is based on the child’s interest in legitimacy and the public policy of protecting the welfare of the child.

Because of the strength of this presumption in Florida, many courts have held that a person claiming to be a “putative” father does not have the right to seek to establish paternity of a child who was born into an intact marriage if the married woman and her husband object.

In some courts, the presumption of legitimacy of a child is so strong, it may never be rebutted. The Florida Supreme Court, however, has reaffirmed that the presumption of legitimacy afforded to a child born within an intact marriage is exactly that: a presumption. And the presumption of legitimacy may be rebutted in certain, rare circumstances.

Big in Japan

The change in the law of Japan is aimed at addressing a problem in which some children of divorced women have been left off family registers to avoid former husbands being recognized as fathers. This has resulted in difficulties in children accessing health, education, and other services.

Under what would be the first change to the century-old Civil Code provisions regarding paternity and marriage, a rule banning women from remarrying within 100 days of a divorce, long considered discriminatory, is also set to be scrapped.

A Justice Ministry survey found about 70 percent of 793 individuals not included in family registers as of August this year had mothers who did not submit birth notifications because of the current legal paternity rule.

Many women, in addition to those who have fled from domestic violence, have opted not to submit notifications of the birth of their child with their current partners in order to avoid having their former husbands recognized as the legal father.

The Cabinet of Prime Minister Fumio Kishida also gave the nod to giving mothers and children the right to file for court arbitration with regard to paternity disputes. At present, former husbands can deny paternity over children born within 300 days of a divorce.

The period for filing for arbitration will be set at within three years of knowledge about a birth. Under the current arbitration system, which has been limited to former husbands seeking to deny paternity, the period was set at one year.

The revisions also include deleting the parental right to punish children, while clearly stating that physical punishment and verbal and physical actions that harm a child’s healthy development are not permissible.

Registration and paternity rules are particularly important in Japan, where birth out of wedlock is rare and widely frowned-upon. About 2% of children are born to unmarried parents, while the average across OECD countries is 41%.

The Japan Times article is here.

The Hague Convention Meets the Best Interest Test

Posted by Ron Kauffman on

The United Nations Committee on the Rights of the Child determined that the Supreme Court of Chile violated the rights of a child after ordering the child returned to his habitual residence of Spain without applying the best interest test.

Hague Convention Best Interest Test

Answering An Andes Abduction

The Mother is a national of Chile. In 2015, she married the Father, a national of Spain. In January 2016, her son J.M., a dual Spanish Chilean citizen, was born in Chile. The Mother and her son left Chile to live with the Father in Spain in November 2016.

When J.M. was a little over a year old and living in Spain with both parents, medical professionals suspected he had a language delay and a form of autism.

Shortly after this spectrum diagnosis, the mother wanted to bring J.M. to Chile where she had arranged his treatment and support plan. The mother wanted to stay in Chile for at least two years.

In July 2017, the father signed an authorization for the mother to travel with J.M. to Chile, where the mother scheduled treatments and support for autism. They decided to stay in the country for at least two years. and had the father’s written approval to travel.

In 2018, one year after authorizing the travel, the father filed a complaint with the Central Authority in Spain, the Ministry of Justice, for wrongful abduction and/or retention of J.M. under the Hague Convention on the Civil Aspects of International Child Abduction.

In January 2019, two lower courts in Chile agreed with the Mother and rejected the father’s return petition. The courts rejected the father’s claim on the grounds that he had given the tacit, even explicit, consent to remain in Chile, which has been the child’s place of habitual residence since birth.

In September 2019, the Supreme Court of Chile overturned the lower courts’ decisions and ordered the child returned to Spain. The Supreme Court did not indicate the conditions under which J.M.’s return should take place, in whose company he should travel, or where and with whom he would ultimately reside and in what circumstances.

The Mother filed a complaint before the United Nations Committee on the Rights of the Child  in 2020.

Hague Child Abduction Convention

I have written and spoken on international custody and child abduction under the Hague Convention. The Convention’s mission is basic: to return children to the State of their habitual residence to require any custody disputes to be resolved in that country, and to discourage parents from taking matters into their own hands by abducting or retaining a child.

The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

While there are several defenses to a return of a child, the best interest of the child is not one of those defenses. That’s because the Hague Convention prioritizes expeditious determinations as being in the best interests of the child.

UN-Heard Of

The U.N. Committee held that the Chile Supreme Court’s order for the restitution of J.M. to Spain failed to conduct a best interests assessment required in all actions concerning children, and violated the child’s procedural guarantees under the Convention on the Rights of the Child.

The Committee noted that, under the Hague Convention, decisions on the return of children must be taken promptly to ensure that the child’s normal situation is duly restored. However, the Committee considered that the purpose and objective of the Hague Convention does not entail that a return of the child should be automatically ordered.

The Committee held that in international child abduction cases, states must first assess the factors that may constitute an exception to the duty to immediately return the child under articles 12, 13 and 20 of the Hague Convention, and then secondly, these factors must be evaluated in the light of the best interests of the child.

The Committee did not find that the child should necessarily remain in Chile. Instead, it found that the Supreme Court of Chile failed to apply the necessary procedural safeguards to ensure that return would not expose the child to harm or a situation contrary to his best interests:

A court applying the Hague Convention cannot be required to carry out the same level of examination of the best interests of the child as the courts called upon to decide on custody, visitation arrangements or other related issues . . . the judge ruling on the return must assess . . . the extent to which the return would expose him or her to physical or psychological harm or otherwise be clearly against his or her best interests.

The U.N. Committee ruled that Chile should re-assess the return petition, take into account the length of time elapsed, the extent of J.M.’s integration in Chile, and pay reparations for the violations suffered, including compensation.

The Committee also ruled that Chile should try a little harder to prevent future violations by ensuring the best interests of the child are a primary consideration in decisions concerning international return.

The U.N. Committee on the Rights of the Child press release is here.

Enforceability of Islamic Prenuptial Agreement

Posted by Ron Kauffman on

The Texas Supreme Court recently had to decide whether an Islamic prenuptial agreement is enforceable. Especially interesting is whether the agreement’s, Arbitration by Fiqh Panel Clause, can be enforced in a family law case involving children.

Texas Islamic Agreement

‘All My Exes Live In Texas’

The Wife, Ayad, and her Husband, Latif married in 2008. In connection with their marriage, they signed an “Islamic Pre-Nuptial Agreement”.

In the Islamic Pre-Nuptial Agreement, they said: “Belief that Islam . . . is binding on them in all spheres of life, and that any conflict which may arise between the husband and the wife will be resolved according to the Qur’an, Sunnah, and Islamic Law in a Muslim court, or in its absence by a Fiqh Panel.”

The three-person Figh Panel will be selected and provides that the panel “will not represent the parties in conflict, but rather, serve as impartial arbitrators and judges, guided by Islamic Law and its principles.” The majority decision of the Fiqh Panel will be binding and final.

Although the Wife’s signature appears on the Islamic Pre-Nuptial Agreement, she alleges that she did not become aware of its contents—or even see it—until she and her husband began experiencing marital difficulties in 2020.

The Wife argues she was “defrauded” into signing a prenup that violated her fundamental rights. In January 2021, she filed for divorce and sought to be appointed joint managing conservator of the couple’s six-year-old son.

Wife argued the term “Islamic Law” was too indefinite; the Agreement was void because it violated public policy; Husband’s previous breaches of the Agreement had excused Ayad from performing; and the Agreement was unconscionable.

The trial court held a hearing on Husband’s motion to enforce, and concluded it would order the parties to arbitrate under the Agreement. The court held a second hearing in which it gave each party twenty minutes to address solely whether the Agreement was entered into voluntarily.

The trial court ruled it had no discretion under the Texas General Arbitration Act but to enforce the Agreement and refer the parties to arbitration per the terms of their Agreement, but would review the award to determine if it violated constitutional rights or public policy, and would hold a hearing to determine whether the award was in the best interest of the child.

The Wife sought review in the Supreme Court of Texas.

Florida and Islamic Prenuptial Agreements

I’ve written about religious prenuptial agreements, such as the Mahr (Islamic Prenuptial Agreement) before. Prenuptial agreements are not just for celebrities. Anyone who brings personal or business assets into their marriage can benefit from a prenuptial agreement.

Prenups are also important to have in place before a couple starts investing in businesses, buying properties, and accumulating mountains of debt. Many religions, especially Islam, have terms couples want to be governed by in the event of divorce.

But just having a prenup is not enough. Prenups are frequently challenged in court. Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement is enforceable.

Florida also adopted the Uniform Premarital Agreement Act. The UPAA requires that all premarital agreements be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself.

Because prenuptial agreements may be challenged in court, Florida courts must consider things such as fraud, duress, coercion, in addition to the constitutionality of prenups, whether they violate Florida law or Florida public policy.

‘Deep in the Heart of Texas’

The Supreme Court of Texas agreed with the Wife that the family court was required to hear and determine her challenges to the Agreement’s validity and enforceability before referring the parties to arbitration.

The Family Code, which provides that a trial court “may” refer suits for dissolution of marriage to either binding or nonbinding arbitration based on the parties’ written agreement is subject to certain limits.

Before arbitration, if a party to a divorce asserts that the agreement to arbitrate is not valid or enforceable,” then the court may order arbitration only if it determines that the agreement is valid and enforceable.

Here, the court incorrectly concluded it “must refer parties to arbitration when it is contracted by the parties,” and that it had “no discretion but to enforce the Agreement.” Since the trial court did not resolve the Wife’s challenges in its order compelling arbitration, and incorrectly concluded it could not, the trial court erred.

The Texas Supreme Court opinion is here.