Month: April 2025

Punishment and Domestic Violence

Posted by Ron Kauffman on

When does child discipline cross the line between punishment and domestic violence? It is a frequent child custody issue which can impact parental rights and timesharing. After a Colorado ski vacation, two parents found out how Florida courts look at punishing your teenager for marijuana, theft, and ingratitude.

Punishment Domestic Violence

Rocky Mountain High

The two Florida parents divorced in 2018. About four years after their divorce, a domestic violence injunction was filed by the mother against the father on behalf of their fourteen-year-old daughter. The Mother alleged in her petition that the father had punched the daughter; grabbed her by the hair, and then sat on his daughter. Worse, while sitting on top of her, the father continued to punch and slap his daughter.

At the trial, the Father testified that he and his daughter had just returned from a Colorado ski vacation during the winter holidays. When they returned, his daughter had given him a pair of socks as a gift. Either very suspicious, or just unhappy with his gift, the father suspected the gift socks were stolen.

The father searched the daughter’s room to see if there were other stolen items. In her backpack from the ski trip to Colorado, the father found marijuana, a pipe, and a vape pen. Colorado, remember, became the first state in the U.S. to sell legal recreational marijuana for adult use. The father announced he was going to punish the daughter for stealing, lying, and possessing marijuana and a vape pen by taking away her most cherished item, her phone.

The daughter refused to give the father her phone, obviously, and they ended up tussling over it. At some point, the daughter snapped the father’s finger back and broke it.

The father refused to return her phone, and the daughter threw a metal thermos and an orange juice bottle. Father denied punching her, pulling her hair, or sitting on her. The daughter told the neighbor she had gotten into an argument with her father but did not need the neighbor to call the police.

The daughter then went back to the father’s house. The neighbor testified the daughter did not seem fearful to return to her father’s house. She then came back to the neighbor’s house and asked for a ride to the mother’s house. During the car ride, the neighbor did not see any physical injuries on the daughter

The mother testified she saw a bruise on the daughter’s back, leg, and arm. The mother took pictures of the bruises. A Child Protection Investigator testified there were “no indicators of mental or physical injury because the parties were deemed as mutual combatants.” The CPI observed “a little black and blue” on the daughter’s shoulder and arm but no bruising or marks. The guardian ad litem for the child also testified, and said it was a mutual combatant situation, and “absolutely 100 percent inappropriate.”

The trial court found there was competent substantial evidence that the daughter is in fear, and granted the injunction for six months. Father appealed.

Punishment in Florida

I’ve written about spanking and custody before. In Florida, parents have a right to discipline their child in a reasonable manner. 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:

“Whoever spares the rod hates their children, but the one who loves their children is careful to discipline them.”

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. 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 sitting on your child, punching her on the floor and pulling her hair is not. While there are some limited privileges for discipline, there are major risks to your custody case, your domestic violence case, and most importantly, to your children.

The High Court

The argument by the father on appeal was that the altercation between he and his cellphone addicted teenage daughter was nothing more than the father exercising his right to discipline his child. He argued his actions were appropriate physical discipline, rather than an assault, battery, aggravated assault, or aggravated battery.

There was also no history of domestic violence by the father toward the daughter or evidence that would give her a reason to believe she was about to be subjected to domestic violence. The injunction was based solely on the one post-Colorado ski trip incident between a father and his teenage daughter in which he physically wrenched the cellphone from her.

The 4th DCA reversed. The father’s physical and verbal actions in taking away the daughter’s cell phone was a form of physical discipline, not corporal punishment. The appellate court ruled that even if it was punishment, it was not excessive corporal punishment because the daughter refused to surrender her phone, and there was no evidence of disfigurement or significant bruising on the child.

The opinion is available here.

Fighting Paternity and UCCJEA Jurisdiction

Posted by Ron Kauffman on

A husband and wife, who marry in Brazil, agree the husband does not have paternity and is not the legal father of their daughter. But that does not stop them from fighting UCCJEA jurisdiction in Florida. What happens when the court disagrees with them that he’s not the Father? A married couple just found out the results in an interesting international child custody case.

UCCJEA Paternity

The Girl from Ipanema

The Wife is a Brazilian citizen living in Rio de Janeiro not far from the famous beach. The Husband is a U.S. citizen, a commercial airline pilot, and resides in Florida. The parties met online in 2014. They later were married in Rio de Janeiro, Brazil in 2016.

The wife had a daughter born in Brazil in 2015, the year before they got married. Interestingly, while the wife acknowledged she was the biological mother, the parties stipulated that the husband was not the biological father.

However, the Husband added his last name to the child’s name on the child’s birth certificate in Brazil. Later, they went to the U.S. Consulate in Brazil, and had a Consular Report of Birth Abroad Certificate issued for the child using his citizenship and his last name for the child.

Next, they had issued a U.S. passport and a Brazilian passport for the child using his last name as the father as well. It was later found that the husband held himself out as the father of his daughter during the marriage. The parties owned one marital asset, a home in Naples, Florida.

In 2021, the Husband filed a petition for divorce in Florida seeking only the following relief: (1) a dissolution of marriage and (2) and equitable distribution of the home in Naples. The Wife filed an answer denying allegations but did not raise the issue of the child, custody, or child support.

During the case, the parties entered a partial marital settlement agreement resolving all of the financial issues, including equitable distribution of the home. However, nothing was agreed, or mentioned, about their daughter.

Instead, the parties filed a stipulation that the husband was not the father of the child. Additionally, the husband filed an objection before trial that the court lacked jurisdiction to hear child support and custody under the UCCJEA because Florida was not the home state of the child.

The family judge entered a amended final judgment finding that the husband was the legal father of the child, and reserved jurisdiction on child support.

The Husband filed a motion for reconsideration arguing that under the UCCJEA, a court in Florida has jurisdiction to make an initial child custody determination only if Florida is the home state of the child or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent continues to live in Florida. The court denied the motion for reconsideration and the husband appealed.

Florida UCCJEA

I have written about international child custody issues before. The UCCJEA is a uniform act drafted to avoid jurisdictional competition and conflict with other state courts in child custody matters; promote cooperation with other courts; ensure that a custody decree is rendered in the state which enjoys the superior position to decide what is in the best interest of the child; deter controversies and avoid re-litigation of custody issues; facilitate enforcement of custody decrees; and promote uniformity of the laws governing custody issues.

An important aspect of the UCCJEA is that it only covers child custody determinations. Under the UCCJEA, a “child custody determination” means a judgment, decree, or other order of a court providing for the legal custody, physical custody, residential care, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The definition does not include an order relating to child support or other monetary obligation of an individual.

The UCCJEA deals with “child custody proceedings,” which are defined as proceedings in which legal custody, physical custody, residential care, or visitation with respect to a child is an issue. Child Custody proceedings do not include proceedings involving juvenile delinquency, contractual emancipation, or enforcement.

Although not part of the UCCJEA, under Florida law, the husband could have also faced additional challenges. For instance, if a mother of any child born out of wedlock and the reputed father intermarry, the child is deemed and held to be the child of the husband and wife, as though born within wedlock.

Boa Sorte

On appeal, the third district affirmed that the husband was the legal father of their daughter. The court noted that the UCCJEA was a jurisdictional act which controls custody disputes and only applies where custody is at issue.

The term custody includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear.

But, a child custody determination does not include an order relating to child support or other monetary obligation of an individual. In this case, the appellate court found that the parties did not dispute custody of the minor child. As a result, the trial court had subject matter jurisdiction over the action.

The opinion is here.

Travel Restrictions to Hague Convention Countries

Posted by Ron Kauffman on

A recurring international custody problem is should a court place travel restrictions on parents who want to travel internationally to only travel to Hague Convention countries with the children? A married couple from China finds out the extent to which a family court can place such travel restrictions.

Travel Restrictions

China Visit

Zhenzhen Wang (the Wife) and Shengyi Ye (the Husband) were married in Iowa in 2008.  They share two children—a son and a daughter. In 2019, Shengyi took a job as a professor in China, while Zhenzhen and the children remained in Iowa.

In 2022, the wife and children visited the husband in China. One day while driving in the car, the parents started fighting, which resulted in the husband abandoning the wife and the children on the side of the road.  She took a taxi back to his apartment, where she discovered he had removed the children’s passports, travel documents, and birth certificates from her backpack.

Although he at first denied taking the documents, he later refused to give them back, preventing her and the children from leaving the country. It ultimately took Zhenzhen “six or seven months” to reorder all of the travel documents and return to Iowa.

When the wife and children returned home to Iowa, she petitioned to dissolve the marriage. Shengyi then filed a competing lawsuit in China, which was ultimately dismissed.

The Iowa court awarded her sole legal custody of the children. After considering his prior conduct preventing the children from returning to home to the U.S., and that China may not enforce a United States custodial order, the court required that the father have visitation with the children only in the U.S.

The court also provided him up to ten consecutive weeks of visitation with the children over the summer, and up to four weeks at a time should he travel to the United States during the school year. The husband appealed, arguing that he should be able to take the children to China for visitation.

Florida and the Hague Convention

I often speak and write about the Hague Abduction Convention and international child custody issues. The International Child Abduction Remedies Act is the statute in the United States that implements the Hague Abduction Convention.

Under the Act, a person may petition a court authorized to exercise jurisdiction in the country where a child is located for the return of the child to his or her habitual residence in another signatory country, so the underlying child custody dispute can be determined in the proper jurisdiction.

But it is important to know that the Convention applies as between contracting states only to wrongful removals or retentions occurring after its entry into force in those states. The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession.

In plain language, the Convention enters into force between an acceding State and a member Contracting State only when the Contracting State accepts the acceding State’s accession to the Convention.

Appellate Decision

The appellate court noted that limiting a parent’s ability to travel internationally with his or her children implicates heightened, and at times conflicting, interests. On the one hand, despite the virtues of our state, the court noted:

“[t]he world does not end at the borders of Iowa.”

Children should not easily be denied the opportunity to build meaningful relationships with a parent who resides outside of the United States or fully experience their dual heritage. On the other hand, there may be problems securing the return from a foreign country of a child to a custodial parent in the United States.

The danger of retention of a child in a country where retrieving the child is difficult, if not impossible, is a major factor for a court to weigh. Courts also consider other factors, such as the parent’s domicile, the reasons for visiting, the children’s safety, the age of the children, the parents’ relationship, the viability of bonds or other return measures, and the character and integrity of the parent seeking out-of-country visitation as gleaned from past comments and conduct.

The Iowa Court of Appeals ultimately affirmed. The appeals court noted that China is not a party to the Hague Convention, so the mother would have no recourse should the husband refuse to return the children to the United States.

The Court of Appeals of Iowa decision is here.