American courts have had different standards for determining a child’s “habitual residence” under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980. The controversy? How to establish a child’s habitual residence and what appellate standard of review should be applied after making that determination. The U.S. Supreme Court has now squarely addressed the conflict about habitual residence. This article reviews the Hague Convention on international child abductions and the U.S. Supreme Court’s recent decision.
For much of Florida’s history, we have relied on the Frye “general acceptance” standard for the admission of expert testimony. Six years ago, the Florida Legislature enacted the Daubert standard to govern the admissibility of expert testimony. Since then, the Daubert standard was criticized for the way it was enacted and rejected by the Florida Supreme Court. However, last year the Daubert standard returned. This article briefly looks at the Frye test, the rapid-fire changes to Florida’s expert witness rules, and the Daubert evidentiary standard.
Emojis and emoticons are popping up in divorce cases, and people are landing in hot water. They can’t simply be overlooked by lawyers and judges, because emojis and emoticons say a lot about the sender’s intent. Ignoring them would be like calling a witness to the stand, and ignoring their facial expressions. Emojis fail the ‘duck test’: if it looks like a duck, and quacks like a duck, then it is probably a duck. That’s because emoji meanings can be so puzzling, a “duck” emoji, may mean anything but a duck. This article on emojis and legal ambiguity, may help anyone interpreting emojis to avoid feeling 🤦.
Unbowed, Unbent, Unbroken: An Update on Grandparent Visitation, The Florida Bar Journal, January 2018
The struggle for grandparent visitation rights in Florida has become a game of thrones between the three branches of government. The Florida Supreme Court has stricken all previous attempts to legislate grandparent visitation as unconstitutional. Yet, the legislature and the governor keep passing new laws to enforce grandparent visitation rights for Florida voters. This article briefly reviews the history of grandparent visitation rights in Florida and provides an update on those rights through the Florida Supreme Court’s most recent decision.
Despite the recent changes to expert testimony in Florida, there is a lingering constitutional issue raised by the way this law was enacted. Because the law is so new, few Florida appellate courts have reviewed these changes. There is also fierce debate within the Florida Bar about the constitutionality of the changes. The Florida Bar Board of Governors is required to consider and vote on all procedural rule changes before those changes are submitted to the Florida Supreme Court, and they just voted to reject the changes.
Florida policy is to see that children have frequent and continuing contact with both parents after they divorce or separate and that parents share in childrearing. The Child Support Guidelines encourage timesharing by allowing courts to award lower child support if a parent is timesharing more. But in Dept. of Rev. ex rel. Sherman v. Daly, 74 So. 3d 165 (Fla. 1st DCA 2011), the First District Court of Appeals prohibited these deviations if the timesharing schedule was just a verbal agreement. After the Daly decision, parents had their time-sharing deviations taken because they only had verbal parenting plans. During the recent 2014 legislative session, a bill was passed which amended the guidelines. The new bill revised the circumstances in which a court may deviate from the child support guidelines. The bill became effective on May 12, 2014.
There are a few reasons parents object to vaccinations. A few objectors assert their individual liberties. Others parents are risk averse to the potential impact of vaccinations. Celebrity anti-vaccination campaigns confuse many. Primarily though, parents objecting to vaccinations hold deep religious beliefs against immunization. There are two vaccination cases in Florida, and the facts in each were very similar. This article briefly examines Florida’s parental responsibility statute, the two Florida cases in which the decision to vaccinate a child was an issue brought to trial, and traces the development of religion as a factor in parental responsibility cases in Florida.
The article reviews the admissibility of expert testimony in Florida, the constitutional separation of powers issue raised by the way this law was enacted, and how amended Rule of Evidence 702 impacts family law. The Legislature can enact substantive law, but encroaches on the judiciary when it enacts a law regulating courtroom procedure. A separation of powers violation of the constitution may have arisen with this new rule. Now what? The article concludes by discussing the ways the new expert witness rule will impact your divorce, and the judges, experts, and the lawyers who practice family law.
The article discusses the evidentiary potential of social media sites, and the peculiar challenges of authenticating materials from the internet. Social media websites, like Facebook, have had an astronomical growth worldwide, and are showing up in divorce trials more and more. The article suggests some of the benefits and obstacles in gathering and using Facebook and other social media evidence at trial. The article also reviews the leading national cases on authenticating social media evidence, and outlines when it is necessary to use computer forensic firms, and other sources, to ensure that the evidence is properly admitted.
Grandparent rights to visit their grandchildren over the objections of fit parents do not exist in Florida . . . or so we thought. Floridians who are activated, deployed, or temporarily assigned to military service can now designate to grandparents their time-sharing rights over the objections of a fit parent. The article briefly examines the history of grandparent visitation rights in Florida, the U.S. Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57, 97 (2000) and the recently enacted Florida Statute §61.13002(2) in light of Florida and U.S. Supreme Court cases. Although the statute may not pass constitutional muster,Florida may have found constitutional ways to promote grandparent visitation.
Underwater Treasure: Equitable Distribution of the “Save Our Homes” Limitation, Florida Bar Journal, Feb. 2011
The year 2008 may be the birth date for a new marital asset in Florida, which can be easily overlooked by clients and family law attorneys alike. The ‘Save Our Homes” Amendment caps increases in your home’s assessment. In 2008, the Florida Constitution was amended to allow homeowners to keep a portion of their tax assessment differential after their home is sold. Many homes in Florida are in negative equity, and clients often overlook the hidden tax advantages their homestead can provide during and after a dissolution of marriage. This article examines the equitable distribution of the tax assessment differential in divorce, and also how the Constitutional Amendment impacts non-married couples selling their homestead after a breakup.
A Wife’s Loss is Not a Husband’s Gain: Equitable Distribution of Capital Loss Carryovers, Commentator Winter 2011
We are living through an economy in which the stock market is taking a beating. House values are sliding, and commercial property prices are down nearly half. This turmoil can mean capital loss deductions, tax savings which can be carried over years after they are incurred, and long after people have divorced. Many clients and attorneys overlook capital loss deductions, and many other hidden valuable assets which may be distributable during their divorce. This article discusses the equitable distribution of capital loss carryovers in divorce, examines the one Florida case which reviewed them, and suggests solutions to the conflict between Florida and Federal law.
People remarry after divorce. Increasingly, new spouses are getting dragged into post-judgment divorce proceedings, even though their income and assets are not relevant for purposes of child support and alimony. For anyone concerned with how their new spouse’s financial privacy will be handled in a post-judgment proceeding, this article is a ‘tongue-in-cheek’ look at the balance between your right to privacy, and the court’s need for a full and fair financial disclosure. The article is an analysis of the two standards developed in Florida for authorizing financial discovery of a new spouse in post-judgment support cases.