Author: Ron Kauffman

Child Custody and Choosing Religion

Posted by Ron Kauffman on

The mother was Christian and the father a Muslim, but she converted to Islam when they married. After they separated, the mother reverted to Christianity. When parents share or have joint child custody, who decides the child’s religion? A New York appellate court just gave the answer.

Choosing My Religion

A Brooklyn couple divorced in 2009 with one child. Their settlement agreement gave them joint legal custody, and the mother had primary physical custody.

The agreement made them consult with each other about the child’s religion, but did not specify which religion the child would be raised. The mother taught the child Christian values and practices.

The child complained the father was pressuring her to adopt Muslim practices and threatened to abcond with her to his native Morocco if she failed to follow Muslim practices and customs.

The child asked the mother to call the police and school personnel. The mother filed for sole legal custody, and the father petitioned to enforce visitation and to enforce a purported oral agreement that the child would be raised as a Muslim.

Florida Custody and Religion

I have published an article on the intersection of religion and custody before, especially when that intersection relates to harm to the child.

For example in one area there is a frequent religious controversy: whether to give a child their mandatory vaccinations.  Usually, religion is used by the objecting parent as a defense to vaccinating children.

Whenever a court decides custody, the sine qua non is the best interests of the child. But, deciding the religious upbringing of a child puts the court in a tough position.

There is nothing in our custody statute allowing a court to consider religion as a factor in custody, and a court’s choosing one parent’s religious beliefs over another’s, probably violates the Constitution.

So, unless there is actual harm being done to the child by the religious upbringing, it would seem that deciding the child’s faith is out of bounds for a judge.

Ironically, that may not be the rule all over Florida. Different appellate courts in Florida have slightly different takes on the issue, and the question of whether a trial court can consider a parent’s religious beliefs as a factor in determining custody has been allowed.

The Brooklyn, New York case involved the modification of an existing joint custody order.

In Florida, the person seeking modification of custody must show both that the circumstances have substantially, materially changed since the original custody order, and that the child’s best interests justify changing custody. Additionally, the substantial change must be one that was not reasonably contemplated at the time of the original judgment.

Losing My Religion

Back in Brooklyn, the Family Court granted the mother’s to modify joint custody, and give her sole legal custody but granted the father liberal visitation, including on all major Muslim holidays.

The parties’ inability to agree on the child’s religion, the change in the child’s relationship with the father, her fear of his displeasure for not being a “true Muslim,” and her belief that he’d kidnap her to Morocco, constituted changes in circumstances.

The appellate court held that awarding the Mother sole decision-making authority with respect to religion was in the child’s best interests because the father’s actual or perceived insistence that the child follow Islam and threats to abscond to Morocco had a serious adverse effect on the child’s relationship.

The opinion in Baala v. Baala is here.

 

Friends or Spouses?

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Jennifer Aniston and Justin Theroux announced that they are going to file for divorce after two and a half years of marriage. However, some news outlets report they can’t locate the Friends’ star’s marriage license to see if they were even married. What would happen if you find out you were not married?

Friends Like Us

Irrespective of the status of their marriage license, according to news reports, the decision to divorce appears to have been mutual:

“We are two best friends who have decided to part ways as a couple, but look forward to continuing our cherished friendship.”

According to TMZ though: “We checked marriage records in L.A. County all the way back to 2010 and there is no record of a marriage license. There’s such a thing as a confidential marriage license, but we’re told they did NOT get one in L.A. County.”

Is Your Marriage Valid in Florida?

First off, common-law marriages have been abolished in Florida since 1968. In order to be validly married, you need a license. It may seem like a mere formality, but couples who want to be married must apply for a license.

There is a fee for getting a marriage license, and that fee is reduced for attending pre-marital counseling. The license is valid for 60 days. The officiant at the ceremony must certify that the marriage was solemnized.

The certified marriage license must be returned to the clerk or an issuing judge within 10 days, and the clerk or judge is required to keep a correct record of certified marriage licenses.

I have written about Florida marriages and divorces before. Florida courts have repeatedly warned people that they cannot depart from the requirement of the Florida Statutes to have a license, otherwise the courts would be re-creating common-law marriages.

In the event you do not obtain your marriage license, you cannot divorce. This means that certain rights can be lost. For example, you could not make claims for equitable distribution, and you could not ask a court for alimony. That can be a devastating result for many couples who unknowingly, are not married.

Central Perk

The report from TMZ sounds like ridiculously bad investigative journalism. Jennifer and Justin could have gotten a marriage license in any of the 57 other counties in California, or other states and even countries, and their marriage license would be valid.

But just because TMZ claims it spoke with some “Jen sources who have had regular contact with her for years, and they say there’s been talk for a long time they might not be legally married” does not prove or disprove anything.

According to the TMZ article:

“it’s certainly possible they’re legally married, but based on what we found, it’s possible they’re not.”

The TMZ article is here.

 

Is Divorce Genetic?

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Are children of divorced parents more likely to get divorced than those who grew up in two-parent families? University researchers in Virginia and in Sweden are looking into the question of whether divorce is genetic or psychological. The results are surprising.

New Study

According to the report: people who were adopted resembled their biological — but not adoptive — parents and siblings in their histories of divorce.

The report also found consistent evidence that genetic factors primarily explained the “intergenerational transmission of divorce.”

The study’s findings about genes and divorce are notable because they diverge from the predominant narrative in divorce, that the offspring of divorced parents are more likely to get divorced because they see their parents struggling to manage conflict or lacking the necessary commitment, and they grow up to internalize that behavior.

Serotonin and Divorce

I’ve written about genes and divorce before. Other scientists are finding that the fault for divorce may reside in our genetic code. One gene involved in the regulation of serotonin can predict how much our emotions affect our relationships.

Researchers found a link between relationship fulfillment and a gene variant, or “allele,” known as 5-HTTLPR. All humans inherit a copy of this gene variant from each parent.

Study participants with two short 5-HTTLPR alleles were found to be most unhappy in their marriages when there was anger and contempt. They were most happy when there was humor and affection.

By contrast, those with one or two long alleles were far less bothered by the emotional tenor of their marriages.

The new findings don’t mean that couples with different variations of 5-HTTLPR are incompatible, but couples with two short alleles are likelier to thrive in a good relationship and suffer in a bad one.

What Causes Divorce?

Nearly all the prior literature emphasized that divorce was transmitted across generations psychologically, and the recent results about genes contradict that, suggesting that genetic factors are more important.

By recognizing the role that genetics plays in the transmission of divorce, therapists may be able to better identify more appropriate targets when helping distressed couples.

Previous studies haven’t adequately controlled for or examined something else in addition to the environment that divorcing parents transmit to their children: namely genes!

The study’s findings suggest new areas might be useful for therapists to target. For example, addressing underlying, personality-driven cognitive distortions through cognitive-behavioral approaches may be a better strategy.

The article from Virginia Commonwealth University is here.

 

Child Custody: Do Criminal Minds Nest?

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Thomas Gibson, former “Criminal Minds” star, can celebrate Valentine’s Day with a new love interest. He and his former wife seem to be very involved parents though, because they have agreed to share child custody in an amazing way called “nesting.”

According to legal documents obtained by TMZ, actor Thomas Gibson, and his ex-wife Cristina Parker, reached an agreement in their divorce after a 21-year marriage. They are involved parents:

Being a dad is the greatest experience of my life.

According to TMZ, Thomas is paying $3,000 per month in child support for their three children, in addition to paying for their private school and extracurricular activities.

Interestingly, the couple agreed that Thomas to stays in the family’s San Antonio home every other weekend when he has the kids, and when he is not timesharing with them, Thomas stay’s in the guest house.

Nesting

The actor appears to have agreed to a ‘Bird’s Nest’ custody agreement. Nesting is a child custody arrangement where the children live in one house, and the parents take turns living in that house with the children – but never at the same time.

I’ve written about child custody issues before. Nesting is not common to agree to, and is not mandated by a family court.  Generally, both parents have to agree to nesting.

Simply put, nesting is when the mother leaves when the father comes home, and the father leaves when it’s the mother’s turn to come home.  The children remain in the house.

Florida Child Custody

Many people are surprised to learn that the term “custody” (whether joint or sole) are concepts no longer recognized in Florida. Florida replaced the “custody” term for the “parenting plan” concept in order to avoid labeling parents as “visiting parent” or “primary parent”. The ‘new hope’ of the change in law was to try and make child custody issues less controversial.

Under Florida’s parenting plan concept, both parents enjoy shared parental responsibility and a time-sharing schedule.

“Shared parental responsibility” means both parents retain full parental rights and responsibilities, and have to confer with each other so that major decisions affecting their child are made jointly.

A time-sharing schedule, as the name suggests, is simply a timetable that is included in the parenting plan that specifies the times, including overnights and holidays, that your child spends with each parent. However, “nesting” is not specifically defined in the statute.

The benefits of nesting are that the Gibson children don’t have to move from one home to another during custody exchanges because the parents will take turns living in the home where the children live full-time. The children have a much more stability.

Detractors argue that nesting is expensive because the parents need other places to live. This could mean that three homes are needed: one for mom, one for dad, and the children’s nest which is shared.

The TMZ article is here.

 

Sweden’s High Divorce Rate

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In a recent study of women in Sweden, 28 percent of people born to Swedish parents had divorced. But the divorce rate was much higher for immigrant women, where almost 60 percent had divorced in Sweden. The country may explain a lot about international divorce rates.

Stockholm Syndrome?

The divorce rates for immigrants in Sweden seem especially high when compared to the divorce rates in their home countries.

That the divorce rates are higher in Sweden may not be solely due to women’s higher workforce participation. In many patriarchal countries, like Iran, divorce is less accepted, and it can be legally more difficult to get divorced than in Sweden.

Rules about children can differ too. I’ve written on international divorces, especially as they relate to child custody issues and The Hague Convention on abduction.

International Divorces

I’ve written frequently about international divorce issues, especially international child abductions. The Hague Abduction Convention is a multilateral treaty developed by The Hague Conference on Private International Law to provide for the prompt return of a child internationally abducted by a parent from one-member country to another.

Sweden is a signatory to The Hague Convention, but many of the countries where Sweden’s immigrant population are from, are not signatories at all. This can be a problem if child abduction is an issue.

There are some essential elements to every Hague Convention case:

  • The country must be a Hague signatory country;
  • The child must be under the age of 16 years of age;
  • The wrongful removal must be a violation of the left behind parent’s “rights of custody;”
  • The left behind parent’s rights of custody “were actually being exercised or would have been exercised but for the removal.”

So, if a child under the age of sixteen has been wrongfully removed, the child must be promptly returned to the child’s country of habitual residence, unless certain exceptions apply.

The catch, of course, is that a child must be taken from a signatory country to another signatory country, and that is where understanding The Hague Convention comes in.

There is also a problem with hiding assets overseas. The problem of discovery of hidden wealth is even bigger in an international divorce because multiple countries, and multiple rules on discovery, can be involved.

Welcome to Sweden

Often, divorce is seen as a negative development. When families split up, children can find it difficult to adjust emotionally. But, not always for immigrant women in Sweden.

In a country like Sweden, the dynamics between the men and women change. Men who dominated their families because they had the economic power in their home countries lose that power when they integrate into a more gender-equal country like Sweden.

Women from patriarchal societies gain power when they integrate into a country like Sweden. There are more economic opportunities for them, and resources for women’s rights are more developed.

The welfare system is also extensive in Sweden, meaning that even women of low socioeconomic status can leave their husbands with no jobs and receive low-cost health care, education, job training, and a stipend from the government.

For women in Sweden who have migrated from more patriarchal countries, divorce may be an opportunity.

The Atlantic article is here.

 

O Mundo é um Moinho: Brazil and Child Abduction

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Two Brazilian grandparents arrested at Miami International Airport this week are charged with conspiracy and international parental kidnapping for helping move their grandson to Brazil. This is an interesting international custody and child abduction case.

Garota de Ipanema

As the New York Times reports, the father and mother were married in Texas in February 2008 and had Nicolas, their only child, a year later.

The Mother, Marcelle Guimaraes, filed for divorce in September 2012, and the couple shared custody.

The Mother, who is also facing criminal kidnapping and conspiracy charges, used the pretext of a family wedding to get Chris to allow Nico to travel to Brazil.

After arriving in Brazil though, Marcelle filed for sole custody and, according to the criminal complaint, misled Chris about her decision to remain permanently.

Once in Brazil, the Mother wrote to the father:

I have better conditions to raise our son, and I am willing to talk about visitation. My wish is that we can get into an agreement soon, so we can all move on with our lives.

Filho Maravilha

The Father, Dr. Chris Brann, who lives in Houston, said he had often struggled to get permission to see his son in more than 20 trips to Brazil since 2013.

What is unique about this child abduction case is that Chris got federal help. Wednesday, FBI agents arrested Chris’s former in-laws when they landed in Miami, and charged them with conspiracy and international parental abduction.

If convicted of child abduction, each grandparent faces up to five years in federal prison for the conspiracy, and a maximum of three years if convicted of the kidnapping charge.

The Hague Convention

I’ve written, and recently spoke at the Marital and Family Law Review Course, on international custody issues.

Child abduction is a growing problem. Between 2008 and 2016, nearly 10,500 children have been abducted overseas by a parent. Studies show these children are at grave risk of serious emotional and psychological problems.

The Hague Abduction Convention was meant to prevent this. It is a multilateral treaty to provide for the prompt return of a child internationally abducted by a parent from one-member country to another.

There are three essential elements to every Hague Convention case:

  • The child must be under the age of 16 years of age;
  • The wrongful removal must be a violation of the left behind parent’s “rights of custody;”
  • The left behind parent’s rights of custody “were actually being exercised or would have been exercised but for the removal.”

Aquarela do Brasil

The catch about child abduction and the The Hague Convention is that a child must be taken from one signatory country to another signatory country. However, even if two countries are signatories, compliance can be wildly different.

For example, in its 2017 report, the State Department said:

“judicial authorities in Brazil persistently failed to regularly implement and comply with the provisions of the Convention.”

Mas Que Nada

The grandparents, Carlos Otavio Guimaraes, the President of ED&F Man Brasil, and his wife, Jemima Guimaraes, were arrested in Miami after leaving Brazil. They are dual US-Brazilian citizens.

Prosecutors allege Jemima conspired to resettle her grandson in Brazil, because the child had been enrolled in her school in Brazil months before the trip.

The grandfather, Carlos Guimaraes, is also being charged. The grandfather allegedly misled the Father into consenting to the Brazil trip by emailing the Father a flight itinerary showing the mother and child flying back in July.

The New York Times article is here.

 

Divorce Perspectives

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Essence magazine’s Senior Editor, Charreah K. Jackson, wrote an interesting article on divorce entitled: “9 Interesting Facts About Divorce for Black Couples” in which she shares her insights into modern divorce issues that anyone can benefit from.

Although the article is from 2013, the wisdom is timeless . . . and in some ways surprising. Some of the surprising findings from the front-lines of divorce include:

It Takes a Village to Get a Divorce

“When you’re Black, you’re not just married to one person, you’re married to a family. You’re married to a community. You may be married to a church. We’ve always embraced the concept that it takes a village.

For instance, you’ll have a grandmother who will come to court and the judge will say, ‘Well this is between the mother and father.’ Well in many instances, that grandmother is the one who is taking care of the kids.”

Women Pull the Purse Strings

“What makes our divorces different is that our community is formed around a matriarch. African-American women tend to be better-educated and higher-wage earners so when you’re ending a marital relationship the economic factors come into play.

If you have an African-American woman who has her master’s degree and she’s married to someone who has a high school diploma and works at the post office, she’s not going to voluntarily pay alimony for maintenance to him.

Mental Health Neglect and Marriage Don’t Mix

“African-Americans don’t do as well with getting therapy. So for Black people who are having marital problems that may lead to divorce, we’re resistant to any kind of intervention by mental health.

We perceive that, if I have to see a therapist, then something’s wrong with me. Often times, we don’t have the same resources available to us that the broader community has and even when we do have those resources, the stigma can be very challenging.

Conditioned for Call and Response

“When we go to church, we yell out, ‘amen.’ If the preacher is off-tune, then you’re, ‘Oh Lord, please help ‘em.’ We’re just a more expressive people.

I’ve seen White judges and lawyers who don’t fully understand how we express ourselves. A couple could be fighting like cats and dogs before the judge, but in the hallway, they are back friends again. And the judge looks at them and says, ‘Oh my God those people are out of control.’

But they might drive back in the same car. Just because we express ourselves a certain way, doesn’t necessarily mean that others understand what we mean when we express ourselves.

Divorce is for Spouses, Not Children

“All children of a divorce are impacted by their parents’ divorce. Most children will tell you that they want their parents to be together. But they have little control over the outcome of a divorce situation.

What tends to happen in the African-American community is that many fathers who get divorces from their spouses simply divorce the whole family and walk away. I have seen lawyers who don’t look like myself who will think:

‘I’ve gotten her the house, I’ve gotten her the kids. I’ve gotten her alimony.’ But that wife is saying, ‘more important than all those things is that he has a relationship with our children at the end of the day.’

That lawyer thinks he or she has done a great job for that client and at the same time, they don’t recognize the impact this is having on this family in the future. When a father divorces his children, when he divorces his spouse is a very tragic thing in our community.”

The Essence article is here.

 

Why You Should Divorce now!

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Media around the country is reporting something new: lawyers are counseling clients considering divorce to file for divorce right now! Why is there a sudden rush in advice to file for divorce in 2018 if it wasn’t so important before?

What’s Happening to Alimony?

According to Politico, for example, lawyers are advising you divorce now, before the 76-year-old deduction for alimony payments is wiped out in 2019 under the Tax Cuts and Jobs Act.

If you’re going to get a divorce, get it now. Potential divorcees have all of 2018 to use the alimony deduction as a bargaining chip in their negotiations with estranged spouses.

Currently, there is a tax deduction for people paying alimony which substantially reduces the cost of alimony payments. So, for people in some tax brackets, every dollar you pay in alimony to your former spouse really could only cost you a little more than 60 cents.

Under the new tax code though, the alimony deduction is about to be history. The change is an example of how the tax law is having far-reaching consequences beyond its corporate and individual tax cuts, and quietly overturning decades of tax law.

Divorce and Taxes

The new tax code changes definitely will impact your divorce, but it isn’t the only tax which causes people to make the decision to divorce. I’ve written about the area of divorce and taxes before.

For example, the 2012 American Taxpayer Relief Act raised taxes on couples making more than $450,000, and individuals making more than $400,000. As it turns out, some couples found out they could save over $25,000 a year if they divorced.

Think about that for a second. If you could save over $25,000 a year in taxes, you could take a trip to Italy, ski Deer Valley, put a little cash away for college, and still have some mad money to spend just by divorcing and turning their marriage into a long term relationship.

Back then I advised speedy divorce seekers to take it slow: judges can deny you an expedited divorce if you are looking for a quick split – even if that would mean over $25,000 in tax breaks.

There are also a lot of risks in a speedy divorce, known and unknown. Consider how a divorce will impact your relationship. There is no fake divorce. Once the court signs the final judgment, you are divorced.

The New Tax Law

Many divorce lawyers criticize the new law to end the alimony deduction, saying it will make divorces worse. People won’t be willing to pay as much in alimony, they say, which will disproportionately hurt women who tend to earn less and are more likely to be on the receiving end of alimony payments.

Conversely, the alimony deduction has also been criticized. For example, the government argues the deduction is a burden on the IRS because, if the alimony amounts ex-spouses report paying and receiving don’t match, it can force the agency to audit two people who may already be feuding.

Why it Matters

The deduction is a big deal to couples negotiating their divorce because if someone who earns, say, $250,000 agrees to pay $4,000 per month in alimony, it really costs the person about $3,000 after taking the deduction into account.

Without the break, many people will agree to pay only what would have been their after-tax amount. It is feared that more couples will end up fighting in court because they won’t be able to agree on alimony.

2019 Deadline

The alimony deduction repeal doesn’t take effect immediately, and won’t kick in until 2019. That is why lawyers are advising clients to file for divorce now.

However, meeting the 2019 deadline won’t be easy.

Some states have mandatory “cooling-off” periods, others states have residency requirements. So, you can’t just file for a divorce today, and expect that you’re going to be divorced tomorrow.

The Politico article is here.

 

Equal Custody Presumption

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A Kansas legislative committee heard passionate testimony this week from people both for and against a bill that would require courts to order shared custody and parenting of children in divorce cases. What is the status of equal custody?

Kansas Equal Parenting Bill

Kansas Senate Bill 257 would create a presumption in divorce cases that children of the couple would spend roughly equal time with each parent, unless the parties have agreed to another parenting plan in advance.

If the parties have not entered into a parenting plan, it shall be presumed that a court determination of legal custody, residency and parenting time providing for a child’s equal or approximately equal time with each parent is in the best interests of the child.

Under the bill, this presumption may be overcome only by clear and convincing evidence, a high burden to prove in court.

The equal parenting bill also allows courts to make a different determination if they make specific findings of fact stating why equal or approximately equal time with each parent is not in the best interests of the child.

Florida Timesharing

I’ve written about Florida’s attempt to create a presumption of equal timesharing before. People are sometimes surprised to find out that Florida does not have an equal custody law.

Instead, Florida has a parenting plan concept which includes parental responsibility and timesharing. In Florida, courts order shared parental responsibility for a child unless shared parental responsibility would be detrimental to the child.

The best interest of the child is the first consideration, and there are several factors judges evaluate to determine, under Florida law, what is in the child’s best interest.

Is a 50-50 Rule Good Policy?

Fifty-fifty timesharing between parents sounds like a great idea, and there are strong arguments for and against a presumption of equal timesharing.

On the one hand, an equal timesharing presumption promotes Florida’s existing policy of frequent contact after divorce, and puts the burden on the parent opposing equal timesharing, changing the dynamics of custody litigation.

However, requiring every family to have equal timesharing is like requiring every family to wear a size 4 shoe. Not every family fits. The equal timesharing presumption creates a uniform rule where the flexibility of ‘the best interest of the child’ is needed.

We’re Not in Kansas Anymore

Under current Kansas law, custody cases are governed by what judges determine to be in the best interest of the child, rather than equal custody. Changing that law is a heated debate.

Not surprisingly, the hearing drew a packed audience, who told about the difficulty they have had maintaining relationships with their children when they were allowed only limited visitation.

The Lawrence Journal World article is here.

 

Emojis and divorce: What did ???? mean?

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Emails and texts have become regular exhibits in divorce trials. And increasingly, people are using emojis to express their intent. But did the witness’s champagne bottle and lipstick emoji mean what we thought? This is a post about emoji law.

Emojis

“Emoji” is Japanese for pictograph: e “picture” + moji “character”. Emojis are a writing system that uses symbols to represent an idea rather than words.

According to some studies, more than 90% of social media users communicate with emojis with some six billion emojis exchanged daily.

In a way, we’ve regressed to a hieroglyphics language not unlike the ancient Egyptians.

The Wall Street Journal has a great article on the increasing trend of people communicating through pictures and how we lawyers have to decipher the parties’ meaning.

Divorce Evidence

I’ve written about social media evidence in divorce before. The increasing use of emojis has put a new spin on things.

One of the first questions lawyers ask is about authenticity. Is the text, FaceBook or Instagram post even authentic? Usually, authentication of evidence like texts, emails, photographs, videos, audio recordings, and computer records is required as a condition to being admitted into evidence.

Some exhibits are so trustworthy, our Evidence Code doesn’t even require a witness. This is useful for things like: the law, and court rules for instance. For most other evidence, the Evidence Code lets the judge decide.

Over the years, the threat of false evidence being introduced in court has been diminished through the discovery process. We send out requests for admission and have pretrial conferences which have helped make authentication less of a concern.

Only after the evidence is found to be authentic can we discuss the intent of the text or post. Family law is unique. We have hearings early in the case, which means your emoji, and what you intended, can be discussed right away.

Emojis and the Law

Emojis are new, so there are no laws on the treatment of these emotion laden symbols. We only have a few cases to determine what courts do with emojis – and they do not consistently agree.

In some cases, emojis are taken under consideration when interpreting a commenter’s original intent.

For example, the appeals court in Michigan determined that “The use of the ‘:P’ emoticon makes it patently clear that the commenter was making a joke” because the face this emoticon represents usually “denotes a joke or sarcasm.”

The U.S. Supreme Court reversed a conviction of making threatening communications. The primary issue was whether a husband intended a “true threat” to his wife. The husband argued that his text was in jest because he added a “smiley” emoji sticking its tongue out.

The Supreme Court did not discuss the emoji, but reversed the conviction on other grounds.

The Wall Street Journal article is here (paywall).