Hague Child Abduction and Child Custody

Posted by Ron Kauffman on

How important an international child custody rights determination in a foreign country can be for two American parents became the deciding factor in a Hague Child Abduction case. A recent federal Hague Convention decision proves a return petition can fail even when a court finds a child’s habitual residence was Japan before the child was removed.

hague child custody rights

Turning Japanese

The Mother and Father, both Americans, met in May 2022 while working at Al Udeid Air Base in Qatar for the U.S. Air Force. They visited Mother’s brother and their nieces in Japan, and enjoyed the food, culture, and cleanliness of the country. Upon returning to the U.S., their child was later born in Colorado.

They discussed moving to Japan because they wanted a healthy future for their daughter, had looked at schooling, and read statistics on child education in Japan, which ranked high.

 

On January 6, 2025, the family relocated to Misawa, Japan. By May 2025, the Mother asked for a divorce and started sleeping in another bedroom in the home. A few weeks later, when the child was then 18 months old, the Mother moved to Washington state.

The father filed a Hague Convention petition seeking the return of their infant daughter to Japan arguing Japan was the child’s habitual residence and he had custody rights under the laws of Japan.

Florida Hague Child Abduction

I have spoken and written about the Hague Abduction Convention and international child custody issues before. The Hague Abduction Convention establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained.

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 for the return of their child to her habitual residence in another signatory country, so the underlying child custody dispute can be determined in the proper jurisdiction.

To establish a prima facie case a court must make find that the state in which the child was habitually resident immediately prior to the removal or retention is where Petitioner resides and the law of the state of habitual residence; and that the petitioner was exercising those rights at the time of the removal and removal breached the rights of custody.

Big in Japan

The trial court agreed with the father on several important points. It found that the American child was habitually resident in Japan, and that the father had custody rights and was exercising them at the time of removal. Ordinarily, those findings would be powerful evidence in favor of return. But the petition failed on a different element: breach.

Under the Hague Convention, a removal is wrongful only if it breached the Father’s the rights of custody under the law of Japan. The mother presented unrebutted expert testimony that, under Japanese law, if the primary custodian removes the child without force, and the child does not object, the removal does not infringe the other parent’s custody rights.

The trial court found that the mother had been the child’s primary custodian during most of the family’s time in Japan, that there was no evidence the mother used force to remove the child, and no evidence the child objected to leaving Japan.

The trial judge concluded that the father had not proven removal breached his rights of custody rights under the law of Japan, and denied his return petition.

The case is a reminder that Hague Convention cases are not ordinary custody cases and the law of the child’s habitual residence still matters, even if it is the child custody law of another country.

The order is here.

International Child Custody Emergency Jurisdiction

Posted by Ron Kauffman on

A court’s ability to exercise international child custody on an emergency basis is in the news after a father requests a Texas court to exercise jurisdiction over his nine-year-old child and return her after she was removed from Mexico by the Mother.

UCCJEA Emergency Jurisdiction

 

Adiós México

A Mexican father filed a case in Texas alleging his child lived her entire life in Mexico, that Mexico was her home state, and that the mother removed the child to Texas without his consent. The father argued at trial that the child was in the United States on a tourist visa, enrolled in school in a manner inconsistent with that visa, the mother had uncertain immigration status, she’d been arrested in Texas, and there were custody proceedings already pending in Mexico.

He asked the Texas court to name him primary conservator, authorize the child’s return to Mexico, consider abduction-prevention measures, order child support, and issue a writ of attachment for the child.

The mother argued that Mexico was the child’s home state, that two custody proceedings were pending in Mexico, and that no Mexican court had declined jurisdiction. The Texas trial court nevertheless denied her jurisdictional challenge and entered an order exercising “temporary emergency jurisdiction.”

The family court allowed the father to take immediate possession of the child, return the child to Mexico, and present the child to the Mexican courts. The next day, the court issued a writ of attachment. But then the mother filed for mandamus relief in the appellate court, which stayed the trial court’s order, then conditionally granted mandamus

Florida UCCJEA Emergency Jurisdiction

I have written and spoken on many issues related to the UCCJEA as a family law attorney. Later in the year I will be presenting an introduction to the UCCJEA for foreign lawyers in Madrid, Spain.

The UCCJEA is a uniform act created to avoid jurisdictional competition and conflict with other courts in child custody matters. The UCCJEA also promotes cooperation with other courts and ensures that a custody decree is rendered in the state which is in a superior position to decide the best interest of the child. The UCCJEA helps to facilitate enforcement of custody decrees; and has the aspirational goal of promoting uniformity of the laws governing custody issues.

Under the UCCJEA one state is a child’s home state, and the home state keeps exclusive jurisdiction to modify the custody arrangement unless, for example, the child is another state and there is an emergency

The UCCJEA provides for temporary emergency jurisdiction over child custody “if the child is present in this state and … it is necessary in an emergency to protect the child because the child … is subjected to or threatened with mistreatment or abuse.”

¿Cuándo volverás a México?

The appellate court found there was no evidence that the child had been abandoned, and no evidence of an emergency involving mistreatment or abuse. Importantly, the court said the UCCJEA’s emergency provision does not convert immigration concerns, possible deportation, separation from a parent, criminal charges, or lack of contact into “mistreatment or abuse” without more.

The court also noted a procedural problem. When a court exercises temporary emergency jurisdiction while another state or country has jurisdiction, a family trial court has to determine whether there is a prior custody determination and must communicate with the court having jurisdiction which was not done here.

Temporary emergency jurisdiction is an important aspect to intervene when a child is in a state and is subjected to or threatened with mistreatment or abuse. But if the case facts don’t show abandonment, mistreatment, abuse, or a concrete threat of immediate harm, a writ of attachment and return order may be vulnerable on appeal.

The Texas Court of Appeals opinion is here.

Child Custody and Religious Camp

Posted by Ron Kauffman on

Can a parent with child custody stop the other parent from enrolling a child in a religious camp during that parent’s summer timesharing? The Nebraska Supreme Court recently answered that question, and the answer is important for every child custody dispute involving religion.

Religious camp custody

Reason to Believe

The parents were married in 2010 and had two children. They stipulated to a property division and agreed to joint physical custody on a rotating schedule giving each parent equal time.

However, the parties could not agree on one aspect of child custody, the children’s involvement in the Father’s church, and whether the children could attend a church-affiliated overnight camp during the Father’s parenting time.

The Father wanted joint legal custody and testified that the parties agreed on most things. The Mother wanted sole legal custody, saying she had handled most major child-related decisions and did not trust Jacob with big decisions because of his dishonesty about an affair and communication problems.

While both parents had been raised in the religion associated with Jacob’s church, the Mother left the church about five months before filing for divorce, objected to some of its teachings and disagreed about continued church attendance.

The church camp included Bible classes, crafts, activities, nature, and religious themes, but the camp director testified that children did not have to be affiliated with any religious organization to attend and that the primary focus was fun, friendship, and independence.

The Father’s parents lived on the camp property as caretakers; he had attended the camp, served as a counselor, sat on the camp board, and described the camp as a major part of his life and faith development. The Mother had also enjoyed the camp as a child but later opposed the children attending that church camp, even during Father’s timesharing, but did not object to a nonchurch camp.

At trial the court awarded the Mother sole legal custody, allowed the Father to discuss religion and involve the children in church activities, but ruled church camp was to be decided by the Mother as sole legal custodian.

The Father appealed.

Florida Child Custody and Religion

I’ve written about the intersection of religion and divorce. Religion, religious beliefs, and religious practices are not statutory factors Florida courts consider when determining parental responsibility.

Nor is religion an area in which a parent may be granted ultimate responsibility over a child. Instead, the weight religion plays in custody disputes has grown over time in various cases. Why?

Because placing restrictions on a parent’s right to expose his or her child to religious beliefs has consistently been overturned by courts in the absence of a clear, affirmative showing that the religious activities at issue will be harmful to the child.

Generally, Florida courts will not stop a parent from practicing their religion or from influencing the religious training of their child inconsistent with that of the other parent. Religious practices can be restricted, however, when there is a clear, affirmative showing that they “will be harmful to the child.”

Nebraska

The Nebraska Supreme Court recognized the family judge heard the conflicting evidence, observed the witnesses, and ultimately concluded that sole legal custody should be placed with the Mother because joint legal custody would not be in the children’s best interests and affirmed the grant of sole legal custody.

However, the high court also recognized that fit parents have constitutional rights when it comes to their children’s religious upbringing.

Accordingly, a court can only restrict a parent’s religious practices with a child only when those practices pose an immediate and substantial threat of harm to the child’s temporal well-being. Any restriction must also be narrowly tailored.

At trial, the family judge found little or no evidence that the father’s religious practices harmed the children and also found no basis to restrict him from discussing his beliefs or involving the children in church activities during his parenting time.

Given those findings, the Supreme Court concluded there was no basis to let the mother veto the children’s attendance at church camp during the father’s parenting time. The Nebraska Supreme Court case shows a constitutional limit to a parent’s designation of sole legal custody.

The Nebraska Supreme Court opinion is here.

UCCJEA and Wrongful Removal

Posted by Ron Kauffman on

Does a Montana court have UCCJEA jurisdiction to order a parenting plan over a Montana child after the wrongful removal of a child to another country if a parent delays more than a year after trying to legally return the child? The Supreme Court of Montana just addressed that international child custody question.

UCCJEA Montana 2

Little Trouble in Big Sky Country

In 2020, the parties and child moved from Colorado to Montana. Beginning in June 2022 until May 2023, the child resided and attended public school in the Netherlands. But then in May 2023, the child and Mother returned to Montana so the Mother could reconcile with the Father.

On August 11, 2023, the Mother abducted the child without the knowledge or consent of the Father, and returned to the Netherlands. On February 13, 2024, the Mother filed a divorce and custody petition in the Netherlands.

On January 17, 2025, the Father filed a petition to return the child to the USA in a Dutch Court, using the Hague Abduction Convention. His petition was denied, with a conclusion that it was filed more than one year from the wrongful removal, and the child was now settled in the Netherlands.

However, the Dutch court also found that the Mother’s removal of the child from Montana was wrongful, meaning the United States was the child’s “habitual residence”.

The Father’s appeal in the Dutch courts was dismissed. In September of 2025, Father filed an Emergency Motion for Temporary Custody and Petition for Permanent Parenting Plan in the Nineteenth Judicial District Court (Montana District Court).

The Montana District Court dismissed Father’s petition and motion based on its conclusion that it did not have jurisdiction to overturn the decision of the Court of Appeal of The Hague and that Montana is no longer the “home state” of the child since she had not resided in Montana for more than two years before Father filed this action in Montana.

Father filed his notice of appeal of the Montana District Court’s order with this Court in early October.

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.

Montana and almost all U.S. states passed the UCCJEA into law. The most fundamental aspect of the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction vis-a-vis the child. That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let’s say Montana. The ultimate determining factor in a Montana case then, is what is the “home state” of the child.

In Florida, the “home state” of a child means the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding. In the case of a child younger than 6 months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

Back to Dutton Ranch?

Relying on the UCCJEA, the Montana Supreme Court found under the UCCJEA, priority is given to “home-state jurisdiction for child custody proceedings, under which a state has jurisdiction if it is the child’s ‘home state.’”

A child’s “home state” is “the state in which a child lived with a parent or a person acting as parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding.”
Here, Montana was no longer the child’s “home state” as defined by the UCCJEA. Father filed his petition and motion for emergency custody in early September 2025, nearly 25 months after the child was last in Montana.

Father did not file a Hague petition for the return of the child until approximately a year and a half after the child was wrongfully removed from the United States. It is unclear why Father delayed filing a Hague petition for so long.

However, the Netherlands District Court suggests that the parties were negotiating travel and parenting arrangements for the child uring this time. Nonetheless, during that delay the child became settled in her new environment in the Netherlands as the District Court of The Hague concluded and the Court of Appeal of The Hague affirmed.

Montana lost home-state jurisdiction since she had not resided here for the preceding six months before Father filed for custody in the Montana UCCJEA. Under ordinary circumstances Montana courts should treat a foreign country as if it were a state of the United States for the purposes of applying the UCCJEA according to the plain language of the statute.

Finally, the Father failed to point to any legal authority whereby a finding that a child was wrongfully taken from her place of habitual residence, yet now settled in her new environment, overrides a judgment of another jurisdiction that it may properly exercise child custody jurisdiction.

The Montana Supreme Court affirmed the Montana District Court and concluded the Father must pursue his parenting interests in the Netherlands District Court because he waited approximately a year and a half before taking legal action to return his child to Montana, and as a result Montana lost child custody jurisdiction.

The opinion is available here.

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.

Artificial Intelligence and Professional Responsibility

Posted by Ron Kauffman on

Family lawyers are becoming early adopters of Artificial Intelligence, and we are facing new challenges to our professional responsibility. My new article in the Florida Bar Commentator examines how generative AI forces lawyers to expand the traditional duties of candor, confidentiality, and competence to include this new relationship we have with our non-human assistants.

AI Law

Generative AI is a subset of a much broader world of AI, which focuses on creating the text, images, and music we use in our practice and personal lives. Generative AI systems, like Claude and ChatGPT, are the best-known subset of Artificial Intelligence.

AI is evolving rapidly. In February 2019, when OpenAI released GPT-2, it could barely count to five, and threw insults at users. A mere four years later, Stanford Law School administered the Uniform Bar Exam to GPT-4, and it passed the multiple-choice portion of the exam, the written portion, and scored in the 90th percentile overall.

The 2023 Future Ready Lawyer Report showed that seventy-six percent of legal professionals in corporate legal departments and sixty-eight percent of law firms use generative AI at least once a week.

Along those lines, eighty-five percent of law firm lawyers and eighty-four percent of in-house lawyers say they expect to make greater use of technology to improve productivity. So what could go wrong?

A lot can go wrong with AI. So much can go wrong that the Florida Bar has issued Ethics Opinion 24-1. An easy mistake to make is with confidentiality. Before uploading your clients’ confidential information into an AI chatbot, review your AI system’s privacy policies. Avoid uploading any client information unless the AI platform encrypts your data.

Lawyers who rely on generative AI for research, drafting, communication, and client intake have the same responsibilities, and face many of the same risks, when relying on paralegals and assistants. A 2024 study of general-purpose chatbots found that AI models hallucinated as much as eighty-two percent of the time on legal queries.

Ultimately, a lawyer is responsible for the work product that their nonlawyer assistants and AI programs create. This is true regardless of whether that work product was originally drafted or researched by a nonlawyer or an AI program.

The Federal Reserve Bank of Dallas recently published a paper hoping to alleviate concerns that AI will become our evil overlords. Unfortunately, the Federal Reserve Bank’s paper admitted that, under some scenarios:

“AI eventually surpasses human intelligence, the machines become malevolent, and this eventually leads to human extinction.”

The article is available from the Florida Bar Family Law Section Website here.

Haircuts Child Custody and Religion

Posted by Ron Kauffman on

The intersection of child custody, religion, and haircuts is under review after a California a family court weighed the religious convictions of a father who, as a practicing Sikh, wants his children’s hair left uncut. Who has the power to decide whether to give a simple haircut when religious rights are involved?

Child Custody Haircut

Almost Cut My Hair

The parents of two children, a girl aged 7, and a boy aged 5 went to trial over child custody. The Father practices the Sikh faith, whose primary tenets are uncut hair from birth (kesh), as well as use of a bracelet (kara), a small comb (kanga), undergarment (kacha) and a small dagger (kirpan).

When their first child was conceived, he and the mother discussed raising her in the Sikh faith. The children wear a bracelet to remind them not to do wrong. The son started wearing a head covering, called a patka, before he was two years old, and has continued doing so without objections.

The Mother argued the Father harasses her with requests to not cut the children’s hair despite the children having had haircuts beginning as early as four months old; despite the children’s preference and standard to have their hair groomed to their liking, hygiene, and social standards. Besides, there is no court order prohibiting the children having their hair cut.

The trial court found it in the best interest of the children to leave the haircut decision to the children themselves. If the children express a desire to have their hair cut, that was okay, but no buzz cuts for the son. Additionally, the daughter’s hair cannot be cut shorter than shoulder length so the father will be able to braid her hair. The Father appealed.

Florida Religion and Child Custody

I’ve written about the intersection of religion and divorce. However, the issue of religion and haircuts is not a common complaint in family court. Religion, religious beliefs, and religious practices are not statutory factors Florida courts consider when determining parental responsibility.

Nor is religion an area in which a parent may be granted ultimate responsibility over a child. Instead, the weight religion plays in custody disputes has grown over time in various cases. Why?

Because placing restrictions on a parent’s right to expose his or her child to religious beliefs has consistently been overturned by courts in the absence of a clear, affirmative showing that the religious activities at issue will be harmful to the child.

Generally, Florida courts will not stop a parent from practicing their religion or from influencing the religious training of their child inconsistent with that of the other parent. Religious practices can be restricted, however, when there is a clear, affirmative showing that they “will be harmful to the child.”

Haircut 100

The California appeals court noted that parents have a constitutional right to direct the inculcation of moral standards, religious beliefs, and elements of good citizenship. In California, a court will not stop a parent from discussing religion with the child or involving the child in his or her religious activities in the absence of a showing that the child will be thereby harmed.

The trial court failed to determine whether the mother showed that if the children adhered to the father’s Sikh faith regarding haircuts, patka and bracelets, they would be harmed. Harm to a child from conflicting religious instructions or practices cannot be simply assumed, it must be demonstrated in detail.

The family judge also erred when he subordinated the father’s constitutional rights to the children’s wishes by allowing the children themselves to decide if they wanted to wear bracelets and cut their hair. The family judge deferred to the children without first determining if the children were mature enough to understand the religious observances.

The appellate court reversed the ruling permitting the child’s hair to be cut and deferring to their wishes and directed the family judge to decide if the children’s adherence to father’s religion would be harmful to the children.

The California opinion is here.