Year: 2026

Equal Child Custody Bill

Posted by Ron Kauffman on

Attorneys and judges in Mississippi are voicing opposition to an equal child custody bill that would make joint custody of children the standard in all divorce cases. If the proposal becomes law, tens of thousands of Mississippi parents could be affected by the policy. A similar bill was enacted into law in Florida.

equal custody
equal custody

One Mississippi . . .

If the bill is signed into law, it would take effect July 1, 2026. Under the bill, chancery court judges would be required to favor equal parenting time in custody cases. However, parents could present evidence rebutting why equal custody is not in the best interest of their children.

Mississippi’s proposed legislation specifies that the presumption of joint custody will not apply if the court finds a history of violence with one of the parents. However, that would require a “preponderance of evidence” — attorneys have to prove it is more likely than not that violence occurred. The bill also exempts parents who agree on a different custody arrangement outside of court.

Proponents say the legislation will create equal opportunities for fathers who have suffered from courts’ bias that mothers are more worthy of custody. Critics say the bill feigns equality but will be less equitable for vulnerable women and children, including infants who are breastfeeding and mothers who are in domestic violence situations.

Florida Equal Timesharing

I have written about Florida’s efforts to enact equal timesharing. Beginning after July 2023, there was enacted a change to the child custody law that there be a rebuttable presumption that equal time-sharing of a minor child is in the best interests of the minor child.

To rebut the presumption, a parent must prove by a preponderance of the evidence that equal time-sharing is not in the best interests of the minor child. The court must evaluate approximately 20 statutory factors, including things like: evidence of domestic or sexual Violence, substance abuse, health issues that significantly impair a parent’s ability to safely care for the child.

Mississippi Queen

Rep. Dana McLean, a Republican from Columbus, pleaded with her colleagues on the floor Tuesday to reconsider the legislation. McLean said it was problematic that breastfeeding infants would also be subject to a presumption that being separated from their mother half the time was best for them.

“We’re talking about breastfeeding babies just coming home from the hospital,” McLean said on the floor. “And I know that the best interest of an infant would be to be with their mother initially.”

Judges would still have authority to override the presumption, responded Rep. Joey Hood, a Republican from Ackerman and chairman of the House Judiciary A Committee where the bill originated. Judges currently award custody on a case-by-case basis using the Albright factors, a rubric that includes caregiving history, emotional ties and the age of the child.

The Mississippi bill would also change how child support is calculated. Under current Mississippi law, child support is based primarily on the income of the higher-earning parent. Under HB 1662, courts would be required to compare both parents’ incomes and calculate the difference, potentially changing what you pay or receive each month.

In 2017, Kentucky became the first of five states to adopt a joint custody presumption law. Since then, instances have arisen where women and children have suffered abuse because the law compelled them to interact with violent ex-spouses and caregivers, according to The Wall Street Journal.

Eight family attorneys and chancery court judges told Mississippi Today they believe the current custody system is the most fair, and the new legislation would set a dangerous legal precedent. If mothers are awarded custody more often than fathers, it’s not because of an inherent bias but rather a history of being the primary caregiver and fostering emotional closeness, said Kelly Williams, a Ridgeland-based attorney and a child welfare law specialist certified by the National Association of Counsel for Children.

The article is here.

Your AI Use and Privilege

Posted by Ron Kauffman on

Your client’s use of AI for understanding the facts of their family law case is increasing astronomically. But are the written exchanges between clients and their AI platforms protected by either the attorney-client privilege or the work product doctrine? A New York federal court weighs in.

Privilege AI

AI and Attorney-Client Privilege

Generative artificial intelligence tools have become increasingly prevalent across various domains of human activity. It has reliably been estimated, for instance, that more than 50% of all United States households have adopted AI in some form.

Generative AI focuses on creating the text, images, and music we use in our practice and personal lives. Generative AI systems, like ChatGPT and Claude, are the best-known subset of AI, but they are not the most common. The most widely used AI systems are Search Recommendation Engines, like Netflix, Amazon, and Internet Search Rankings, such as Google search, Bing, YouTube, and TikTok.

In one New York case, a man was arrested for securities fraud among other charges, and federal agents seized numerous documents and electronic devices, including over 30-pages memorializing communications the client had with Anthropic’s Claude generative AI platform.

The client used AI to prepare reports outlining his defense strategy, and outlined his arguments regarding the facts and the law that the government would use in charging him with securities fraud.  At the hearing to exclude the documents, the client’s attorneys argued the reports the client prepared using Claude were used “in anticipation of a potential indictment” and for the purposes of speaking with his lawyers to prepare a defense.

The government moved for a ruling that the AI documents are not protected by the attorney client privilege or the work produce doctrine.

Florida Attorney-Client Privilege

I recently wrote an article about the increasing use of AI by lawyers and clients. The 2023 Future Ready Lawyer Report showed that 76 percent of legal professionals in corporate legal departments and 68 percent of law firms use generative AI at least once a week.

In Florida, a client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.

Additionally, the personal views of attorneys as to how and when to present evidence, their evaluation of its relative importance, their knowledge of which witness will give certain testimony, personal notes and records as to witnesses, legal citations, proposed arguments, diagrams and charts they may refer to at trial for their convenience, but not to be used as evidence, come within the general category of work product.

No Florida Court has published an opinion to date whether the independent use of public-facing generative AI in legal matters forfeits the protections afforded under the attorney-client privilege and the work-product doctrine, leaving such materials vulnerable to disclosure.

Is AI Use Privileged

The New York judge ruled that the client’s pages of AI-generated materials were subject to disclosure to the government because any privilege was waived when the client shared information with a third-party – the Claude AI platform – thereby failing to maintain the information’s confidentiality.

The trial court also rejected the application of the work-product doctrine, ruling the AI platform is not a lawyer, even though commentators have argued that whether Claude AI is an attorney is irrelevant because a user’s AI inputs, rather than being communications, are more akin to the use of other Internet based software, such as cloud-based word processing applications.

To the court, all “[r]ecognized privileges” require, among other things, “a trusting human relationship,” such as, in the attorney-client context, a relationship “with a licensed professional who owes fiduciary duties and is subject to discipline.

AI is not a lawyer and was not used at a lawyer’s direction. In other words, because the AI-generated materials were created independently by the client himself, the materials could not qualify as protected work product.

The recent New York ruling highlights that a client’s independent use of generative AI in a divorce or family law case may forfeit the protections afforded under the attorney-client privilege and the work-product doctrine. Clients should consider confidentiality before using AI and involve their lawyers early when using AI to analyze your legal case.

The opinion is here.

Family Law and AI Hallucinations

Posted by Ron Kauffman on

Hardly a day goes by without news that a lawyer – and increasingly a client – has been sanctioned for using AI for legal research which contain hallucinations. Do programs like LexisNexis and Westlaw entirely solve the hallucination risk, or are family law researchers at risk?

AI Family Law

Cyberdyne Legal Research

Being a lawyer today means relying on artificial intelligence the same way we rely on human staff. AI helps with analyzing documents and discovery, as well as performing core legal tasks, from researching caselaw to document drafting. But make no mistake, AI models can hallucinate fake results. And, as any fan of the Terminator movies knows, AI may also lead to human extinction.

However, courts are dealing more with the hallucination issue, and the misuse of AI in court filings. Most of these cases, if not all of them, deal with citations to non-existent legal authority or the attribution of quotes to cases that do not contain the quoted material — produced as a result of what has come to be termed “AI hallucinations.”  A legal AI hallucination occurs when a generative AI model gives you information that appears plausible but is in fact wrong, fabricated, or unsupported by the citation.

Clients are getting in trouble too. A recent federal case is a little different take on hallucinations. In the recent federal case it appears that AI was used not to hallucinate the law, but to hallucinate the facts. If an hallucination is an answer by an AI with made up cases, inventing facts would be a huge new risk in a high-stakes divorce.

In a recent case, the plaintiff filed a sworn declaration opposing a motion for summary judgment which contained multiple fabricated quotations, along with manufactured citations to deposition transcripts, as if they came from sworn testimony.

However, the declaration grossly mischaracterized the testimony and other facts in the record. At oral argument, the lawyers used some of these fabricated “facts” to argue to the Court that this case contained genuine issues in factual dispute.

More interesting, the client and his former counsel refused to accept responsibility for creating and submitting the declaration despite having had multiple opportunities to do so. The court ultimately ordered attorneys’ fees be paid by the lawyer and the client thousands of dollars to the other side as a sanction.

Semantic Collapse and Legal Research

I recently wrote an article about the new players in AI, “Retrieval-Augmented Generation, or RAGs.” The leading AI legal research tools are RAGS. Empirical analysis of the leading AI legal research RAGS — like those offered by LexisNexis and Thomson Reuters — may still generate hallucinations in a non-trivial number of cases.

The Commentator article found that some studies have shown that RAG AI research models may still hallucinate. But it may be getting worse. An even newer claim has come to light. They call it “Semantic Collapse.” Supposedly, once your AI platform hits about 10,000 documents, the AI system starts treating valuable data like random noise.

In one recent study, four document sets contained around 300 pages of documents which answered test questions. However, each set of documents contained different numbers of additional, irrelevant pages, ranging from 1,000 pages to 100,000. An ideal RAG system should behave identically across all document sets.

But in practice, the added irrelevant pages tricked the RAG system into retrieving the wrong answer for a given query. And the more documents that were introduced, the more a wrong answer was likely to happen. The conclusion reached was that RAG performance tends to degrade as the number of documents increases.

The AI Paradox

There are some fair and unfair observations about the purported new study. True, a vector search may become less sharp at distinguishing highly relevant versus non-relevant documents as the volume of documents increases. But at the same time, the study was done by a competitor maker of a RAG system, which introduces the problem of bias.

More importantly, there is an inherent paradox when we use AI. It is called the AI trust paradox, and it is a phenomenon in which the more confident and human-sounding an AI chatbot becomes, the more we trust it. The problem is we can’t trust it. All AI systems, event the ones that seem reliable can get it wrong. While AI can increase our efficiency, we need to think of them as inexperienced assistants that need our guidance.

The U.S. District Court case is here.

My Florida Bar Commentator article on AI is here.

Is January Really Divorce Month

Posted by Ron Kauffman on

Forbes magazine is currently reporting on what’s become a standard topic to start the new year: is January really the “divorce month.” Why does January even have this reputation? Is it because January is when there is a big increase in couples filing for divorce and child custody?

January Divorce

New Year New Start

While the new year brings on resolutions including diets, going “dry” in January, and an uptick in gym memberships, New Year’s resolutions can often include divorce. Some lawyers think that the first working Monday of the year is “Divorce Day.” In 2026, “Divorce Day” is Monday, January 5th.

Many couples stay together – with all the stress the holidays bring – “for the children.” But once New Year’s Day arrives, couples are free to think about fresh starts. Many law firms around the country have begun to call January the “Divorce Month”.

According to some research, divorce filings have peaked in late summer and early spring. Some experts believe that divorce is most likely driven by a domestic ritual calendar that governs family behavior. Often, August is the month for divorce filings following family vacations and right before school starts. The seasonal change of weather in the spring has also been said to cause people to act.

Interestingly, many people see a drop in divorce filings from Thanksgiving until the start of the New Year. Problems that already exist between couples become exacerbated during the Christmas holidays. The stress of spending time with relatives, cooking large elaborate meals, and the expense of buying presents can all be sources of stress and friction between couples.

New Years, under this theory, marks the final straw in an already tumultuous relationship and the resolution that they will not spend another unhappy year together. Inquiries of divorce lawyers can peak during January, but is it really just a comparison to the two months prior that saw a drop in divorce filings?

Florida Divorce

I’ve written about no fault divorce and statistics about divorce – such as the January divorce month phenomenon – before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your husband’s alleged infidelity with a congresswoman. Instead, you just need to state under oath that your marriage is “irretrievably broken.”

The official term for divorce in Florida is “dissolution of marriage”, and you don’t need fault as a ground for divorce. Florida abolished fault as a ground for divorce. Before the no-fault divorce era, people who wanted to get divorce either had to reach agreement in advance with the other spouse that the marriage was over, or throw mud at each other and prove wrongdoing like adultery or abuse.

No-fault laws were the result of trying to change the way divorces played out in court. No fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.

Divorce in January

If you have reached the conclusion that you can’t spend another minute in your marriage, is January the best time for you to file for divorce? Filing for a divorce impacts your children emotionally and psychologically and creates financial stressors.

Living in two separate households is more expensive than living in one home together, and the more children in your marriage, the more costly the two households will be.

A two-bedroom apartment in Miami can range from around $1,900 – $2,500 in some parts of Miami Lakes/West Kendall to as high as $3,500 in the Brickell area. Three bedroom will naturally be more costly and harder to find than a two-bedroom apartment.

In Florida, there is an initial temporary order issued when filing for divorce designed to preserve the status quo. Realistically however, people separating households into two homes is a division which can leave both households with less than the combined previous married household.

So, is January the best month of the year to file? Possibly. Children are often starting the new school term in the new year. They are still home from school and will have enjoyed a holiday with both parents, and are still excited with their presents. Additionally, bonuses are often paid in the beginning of the year.  January is here. Happy new year and new you.

The Forbes article is here.