Equitable Distribution of Human Organs

If you promise to love someone with all your heart, can you ask a court for an equitable distribution of your donated human organs back? One very upset New York organ donor spouse is asking the court to be made whole again.

equitable distribution organs

Kidney Pains

Richard Batista, a 49-year-old doctor from Ronkonkoma who graduated from Cornell University Medical School in 1995, married Dawnell Batista on August 31 1990. The couple had three children, then ages 14, 11 and 8.

After Dawnell had two failed kidney transplants, her husband donated one of his kidneys to his wife in an operation that took place at the University of Minnesota Medical Centre on June 18 2001. Richard Batista said his marriage at the time was on the rocks because of the strain of his wife’s medical issues.

“My first priority was to save her life. The second bonus was to turn the marriage around.”

Four years later, Dawnell sued her husband for divorce, alleging domestic violence and infidelity.  One week before the divorce trial was scheduled to begin, Richard announced he was seeking a stay of the case until his retained “expert” could give an opinion to the court estimating how much his kidney was worth.

After Dawnell filed for a divorce, Richard wanted the court to either award him his kidney back as part of his settlement demand, or credit him in the equitable distribution the fair market value of his donated kidney – an estimated cool $1.5m.

Florida Equitable Distribution

I have written about equitable distribution in Florida before. In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, a court must set apart to each spouse that spouse’s non-marital assets and liabilities.

However, when distributing the marital assets between spouses, a family court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors.

In Florida, nonmarital assets include things such as assets acquired before the marriage; assets acquired separately by either party by will or by devise, income from nonmarital assets, and assets acquired separately by either party by non-interspousal gift. Importantly for this doctor’s divorce, will the donation of his pre-marital body part be construed as an interspousal gift?

Kidney Failure

In a 10-page decision, the Nassau County Supreme Court rejected the ex-husband’s request that it should consider his donated kidney as an item of property to be valued in the divorce suit, according to Dawnell Batista’s lawyer.

The court said “marital property” covers a lot of things, but human tissues or organs aren’t any of them. It also said that not only was Richard Batista’s attempt to extort money from his wife for the kidney he donated legally unsound:

“The defendant’s effort to pursue and extract monetary compensation therefore not only runs afoul of the statutory prescription, but conceivably may expose the defendant to criminal prosecution.”

Medical ethicists agreed that the case is a non-starter. Asked how likely it would be for the doctor to either get his kidney back or get money for it, Arthur Caplan at the University of Pennsylvania’s Centre for Bioethics, put it as:

“somewhere between impossible and completely impossible”.

What’s more, no reputable surgeon would perform such a transplant and no court could compel a person to undergo an operation, he said.

The NBC New York article is here.

Can a Prenuptial Agreement Make You Smile More

Something to make you smile more or less, Amazon founder, Jeff Bezos, did not have a prenuptial agreement when he divorced his first wife, MacKenzie Scott. While his divorce cost him $38 billion, some argue his net worth would hover around $288 billion today. If celebrity net worth lists don’t interest you, the importance of having a prenuptial agreement should.

Amazon prenup

Prenup Prime

At the time of his separation with Scott, Bezos was the wealthiest individual globally, with a net worth of $150 billion, primarily due to his 16 percent ownership in Amazon. Bezos’s divorce is considered a significant shift in the distribution of wealth at the pinnacle of global affluence. That’s because the distribution of the Bezos fortune at the time of the divorce was practically unprecedented in size.

As of February, Jeff Bezos’ wealth is estimated at $191 billion, positioning him near the top of the list of the world’s richest people. Embarrassingly, Bezos is rumored to rank behind Tesla Inc. CEO Elon Musk, whose net worth is $199 billion.

The Musk ranking comes with a caveat. A recent legal decision invalidated $56 billion in options Tesla awarded Musk in 2018, potentially affecting his net worth and standing.

Despite this, Musk’s financial status remains unchanged because of the possibility of an appeal. Both men trail behind Bernard Arnault and his family, who oversee LVMH, with a net worth of $217.6 billion.

Florida Prenuptial Agreements

I’ve written about prenuptial agreements before. Prenuptial agreements are about more than just resolving uncertainty in a marriage.

When a spouse is a major shareholder of company, their wealth can be subject to wide price swings. For example, when the head of Continental Resources was getting divorced, shares of his company dropped 2.9%. Conversely, when Rupert Murdoch announced his divorce, shares of News Corp gained 1.4%. Why? Because in Rupert Murdoch’s case, the divorce announcement stressed his prenuptial agreement, and a divorce would have “zero impact” on the company

A prenuptial agreement (or “prenup” for short) is a contract between people intending to marry. A prenup determines spousal rights when the marriage ends by death or divorce. This can be especially important in second marriages.

If you divorce without a prenup, your property rights are determined under state law, and a spouse may have a claim to alimony while the suit for divorce is pending and after entry of a judgment.

That’s where prenups come in. Prospective spouses may limit or expand state laws by an agreement. Prenups are also used to protect the interests of children from a prior marriage, and to avoid a contested divorce. Prenups can be a reliable guide down rough rivers if they’re done right.

Prime Deals

According to Yahoo! Finance, an intriguing “what if” regarding Bezos’s billionaire ranking develops had he not divorced without a prenup. Before their divorce, Bezos’s 16 percent stake in Amazon was valued at $150 billion.

Following the divorce and subsequent financial decisions, including significant sales of Amazon stock to fund his Blue Origin space venture, Bezos’s share in the company decreased to approximately 10%. These transactions, coupled with the divorce settlement that transferred a 4% stake in Amazon to Scott, have substantially altered Bezos’s potential net worth.

Despite all of that, had Bezos maintained his full share in Amazon, without the divorce, and without liquidating portions of his stock, and without funding Blue Origin, his wealth might have been higher. Given that Amazon’s market cap is now around $1.8 trillion, a 16 percent stake would equate to $288 billion.

Now imagine how much different – and better – his life would have been if he’d only had a prenup?

The Yahoo! Finance imaginary calculation of the Bezos fortune surpasses the wealth of other billionaires, including Musk, Zuckerberg, Gates, and Arnault. Although purely hypothetical, the Yahoo! Finance analysis highlights the importance of having a prenuptial agreement.

The Yahoo! Finance article is here.

Reducing Divorce Waiting Periods

With many countries and U.S. states, having divorce waiting periods, the District of Columbia’s recent legislation, which is reducing its waiting period, is big news. The D.C. Council gave unanimous approval to legislation that eliminated long waiting periods to file for divorce. The waiting period was considered especially harmful to survivors of domestic violence filing for divorce.

divorce waiting period

Waiting in Vain

D.C. law previously allowed a couple to divorce after six months of living separately, only if both parties mutually and voluntarily agreed to it. If a spouse contested the divorce, D.C. law required the couple to remain legally married for a year. Now if one spouse wants a divorce, they can file for one at any time — without any waiting period.

“It made no sense at all that someone might be chained to their abuser or their partner when they didn’t want to be. This was a common sense reform that allows people to move on with their lives and also provide some extra supports for survivors of domestic violence.”

The D.C. Council unanimously approved the bill in November 2023, and the new law took effect last week. The new D.C. law also requires judges to consider domestic violence history, including physical, emotional and financial abuse, when determining alimony or property distribution and it explicitly allows judges to award exclusive use of a family home to either spouse while awaiting litigation.

Florida Divorce Waiting Period

I’ve written about divorce waiting periods, and your rights in divorce before. Like the District of Columbia and other U.S. states, Florida also has a divorce waiting period of sorts. In Florida, no final judgment of dissolution of marriage may be entered until at least 20 days have elapsed from the date of filing the original petition for dissolution of marriage.

 The thinking behind waiting periods in Florida reflects the protective regard Florida holds toward the preservation of marriage and a public policy that marriage is the foundation of home and family.

In some cases the waiting period is longer. For instance, no dissolutions in Florida are allowed in cases of an incapacitated spouse unless the party alleged to be incapacitated has been adjudged incapacitated for a preceding period of at least 3 years. However, the court, on a showing that injustice would result from this delay, may enter a final judgment of dissolution of marriage at an earlier date.

Tired of Waiting

This change to the D.C. law will eliminate one of the many barriers people face when leaving abusive partners. The up-to-one year waiting period, which was established in the 1970s, was considered by many to be outdated and paternalistic.

Half of all states have a waiting period between the filing of divorce papers and when the marriage is legally dissolved, which can range from six months to even longer in some states. But why?

It has long been a recognized public policy by many states that encouraging and preserving the institution of marriage was a societal benefit. These days that notion may seem like an anachronistic legal concept. But the public policy underlying the presumption that marriage is a good institution still exists in many state statutes. Delaying a divorce then, comes from the theory that a couple, if they had more time, could preserve their marriage.

The Washington Post article is here.

When a Prenuptial Agreement Fails

If marriage is a business relationship, a prenuptial agreement is like the incorporation documents. But what happens if during your marriage you find out the prenuptial agreement you paid for fails? For one woman, the results of a prenup fail could mean the loss of her entire inheritance.

Prenup Fails

Protecting Your Assets

After you and your spouse get married, ‘what’s theirs is yours, and what’s yours is now theirs.’ Unless you get a prenup. A prenuptial agreement is a written document between prospective spouses thinking about marriage. A prenup becomes effective upon marriage.

What can you put in a prenup? There are few limitations, but you can agree on your rights to any property either you or your spouse have or will have, who can manage and control the property, and what happens to property in the event of death or divorce. You can also agree to alimony, or to waive alimony,  and many other issues that do not violate some public policy or criminal law.

There are two things she advises before getting married: (1) buy separate comforters for your bed, and (2) get a prenuptial agreement that fully protects you – even if you don’t think your assets are worth much. Without a prenup, you might learn you’re not be protected the hard way.

In the article, the reporter got married right out of graduate school and had no job. Her assets consisted of a used car, a cat, and an inheritance she kept in a trust fund. Her future husband had no assets, but was planning to go to dental school which had a hefty price tag. The Wife’s prenup ensured that her trust fund could not be used to pay for his graduate school tuition.

Notwithstanding her prenup though, during the marriage, the wife used her trust fund monies on their living expenses. Then she decided to ignore the prenup entirely. She used all of her premarital inheritance as a down payment on a marital home. Then she titled the house in both names. Then she also agreed her husband’s salary would pay the mortgage and most other bills related to “their” home.

Florida Prenuptial Agreements

I’ve written about prenuptial agreements before. Prenuptial agreements are not just for the rich and famous. Anyone who brings assets, or a large inheritance, into their marriage can benefit from a prenuptial agreement.

Prenups are important to have in place before a married couple starts investing in businesses, properties, and other investments.

But there can be ‘prenup fails’ too. In addition to being completely ignored, prenups can also be challenged in court. Florida has both case law and a statute to help lawyers, judges, and the parties determine if a prenuptial agreement is enforceable. For example, Florida adopted the Uniform Premarital Agreement Act.

The UPAA is a statute that requires that all premarital agreements be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself.

Couples wanting to sign a prenup can enter into an agreement with respect to their rights and obligations in any of their property. Whenever and wherever property was acquired or where it is located; couples can control their right to buy, sell, use, transfer, or otherwise manage and control their property if they separate, divorce, or die.

When ruling on the validity of a prenup, Florida courts must consider things such as fraud, duress, coercion, in addition to the unfairness of the agreement, and whether there was any financial disclosure. While prenuptial agreements may be challenged in court, we will have to wait and see if the court will invalidate Costner’s prenuptial agreement.

A Messed-up Prenup?

After seven years, the husband informed his wife that he wanted a divorce. He also wanted to sell their jointly owned house and split the profits equally. Without a house though, the wife couldn’t qualify for a mortgage on a new home, and all of her premarital inheritance money was now tied up in a marital home she had to split with her soon to be ex.

When the wife contacted her lawyer to enforce her prenuptial agreement, and get back the deposit she alone paid for in their joint home, she learned the hard way her prenup would not help her. Why? Because she’d spent her inheritance on a marital home titled in both of their names. Her prenup only protected her trust fund money from being spent on paying off her husband’s student loans.

The couple came to an agreement, which was fleshed out over the next few weeks by their lawyers. They sold the house, and the wife got enough money from the sale of her marital home to pay for rent – with the help of alimony.

She was officially divorced by the end of the year, but she found out the hard way her prenup failed to protect her because she ignored it. The wife could have protected her inheritance in several ways: not putting the home in joint names, or amending her prenuptial agreement to decide how her down payment would be treated in a divorce.

Instead, she learned a few lessons. Her advice now is: “Get a prenup.”

The Business Insider article is here.

Speaking on Interstate and International Custody

Honored to be speaking on interstate and international child custody issues at the prestigious Marital & Family Law Review Course in Orlando from January 26th to January 27th. I will be discussing federal and state statutes relating to child custody and family support, in addition to the Hague Convention on international child abductions. The event is co-sponsored by the Florida Bar Family Law Section and the American Academy of Matrimonial Lawyers.

Speaking International Child Custody

Interstate Custody

Parents move from state to state for various reasons. It is a subject matter I have written and spoken about many times. Whether children are moved by parents wrongfully or not, moving your children creates interstate custody and support and problems.

The Uniform Child Custody Jurisdiction and Enforcement Act, and The Uniform Interstate Family Support Act, can be critical laws to know in those cases.

International Child Abductions

What happens if your children are wrongfully abducted or retained overseas? If that happens, you must become familiar with the Convention on the Civil Aspects of International Child Abduction, also known as The Hague Convention. This international treaty exists to protect children from international abductions by requiring the prompt return to their habitual residence.

The Hague Convention applies only in jurisdictions that have signed the convention, and its reach is limited to children ages 16 and under. Essentially, The Hague Convention helps families more quickly revert back to the “status quo” child custody arrangement before an unlawful child abduction.

If your children are wrongfully taken out of the country or wrongfully retained after the time for returning them passed, the Hague Convention can help you get them back.

Interstate Family Support

The Uniform Interstate Family Support Act is one of the uniform acts drafted by the Uniform Law Commission. First developed in 1992, the UIFSA resolves interstate jurisdictional disputes about which states can properly establish and modify child support and spousal support orders.

The UIFSA also controls the issue of enforcement of family support obligations within the United States. In 1996, Congress passed the Personal Responsibility and Work Opportunity Act, which required all U.S. states adopt UIFSA, or face loss of federal funding for child support enforcement. Every U.S. state has adopted some version of UIFSA to resolve interstate disputes about support.

Certification Review Course

It is a privilege to be invited to speak on interstate custody and international child abductions at the annual Family Law Board Certification Review Seminar again. The annual seminar is the largest and most prestigious advanced family law course in the state. Last year’s audience included over 1,600 attorneys and judges from around the state.

The review course is co-presented by the Family Law Section of The Florida Bar, and the American Academy of Matrimonial Lawyers.

Registration information is available here.

Your OnlyFans Account Could Cost You Child Custody

Family lawyers are concerned with our clients’ online activities. That’s because it is not only your fans looking at your social media and other accounts. If your Ex discovers you are selling sexually explicit material of yourself on OnlyFans it could cost you child custody as one woman in Philadelphia found out.

Onlyfans child custody

City of Brotherly Love?

The Father and Mother were married for less than two years and had separated before their Child was born.  Since 2014 the couple shared legal custody. The Mother had a majority of the time, and Father had alternated two or four nights per week.

In 2020, Mother filed a petition to modify custody, alleging their Child was involved in two car crashes while being driven by Father’s new wife.

At the hearing, the Father defended by complaining to the court the Mother was posting sexually explicit photographs of herself on her OnlyFans website. The Father also made a ChildLine report about the Mother’s behavior.

The trial court immediately terminated the Mother’s contact with Child and ordered a forensic interview with Child. The court held that if the forensic interview revealed the Child was not aware of Mother’s OnlyFans activity, she would be granted supervised telephone calls – but no in-person contact pending a future court order!

However, if Child was aware of the Mother’s online activities, then Mother would be denied all contact with Child. The order also required the Mother to delete her OnlyFans  account and submit to a psychological evaluation.

The Mother filed a petition for emergency hearing after Children and Youth Services showed no sign of child abuse or that Child was aware of the Mother’s OnlyFans activity. The Mother’s petition was denied, but she was given back partial physical custody of Child every other weekend from Friday to Sunday evening, with Father retaining sole legal custody.

In 2020, Mother asked to modify the order asking the court for both shared legal and physical custody. In 2023, the family court awarded shared legal and physical custody of Child. At the hearing, the judge found there was no evidence that OnlyFans activity caused Child any harm, and ruled that the court was not permitted to “judge a parent’s private adult behavior outside the presence of the child”.

The Father appealed.

Florida Child Custody and OnlyFans

I’ve written about child custody issues before. In Florida, “custody” is a concept called parental responsibility, which can be either shared between parents, or one parent  can be given sole responsibility.

In child custody cases generally, shared parental responsibility is a relationship ordered by a court in which both parents retain their full parental rights and responsibilities. Under shared parental responsibility, parents are required to confer with each other and jointly make major decisions affecting the welfare of their child.

In Florida, shared parental responsibility is the preferred relationship between parents when a marriage or a relationship ends. This year, Florida enacted a law making a rebuttable presumption that equal time-sharing of a child is in the best interests. To rebut this presumption, a party must prove by a preponderance of the evidence that equal time-sharing is not in the best interests of the child.

Determining the best interests of a child is not entirely subjective. Instead, the decision is based on an evaluation of certain factors affecting the welfare and interests of the child and the circumstances of the child’s family. Some of those factors concern the moral fitness, and the mental and physical health of the parents.

Not Only Fans

On appeal, the Father argued the family judge did not appropriately consider Mother’s “poor life choices” when granting Mother shared legal and physical custody of Child based upon her prior OnlyFans site.

The appellate court noted the OnlyFans account was deleted in 2020, she has never posted adult content on any other site, her interactions with her patrons on the site were entirely virtual and solely through her pseudonymous username, and she never created content in her home when the  Child was present.

Additionally, the child investigation revealed that Father’s child abuse report was “unfounded.” In reviewing the best interests of the child factors in Pennsylvania, the trial court found that “none of the custody factors include the morality of a parent’s judgment or values.”

The trial court then determined that Mother’s OnlyFans activities were irrelevant to the court’s custody analysis because Father failed to establish the Mother’s activities on OnlyFans caused Child any harm. The record showed the Child was not aware of Mother’s activities. The Father presented no evidence to prove otherwise, and did not present evidence showing Mother’s OnlyFans activities raised any safety concerns because the Mother participated anonymously with her location shielded.

The appellate court agreed that a parent’s morality is not an enumerated custody factor in Pennsylvania, and the Court correctly rejected consideration of a parent’s morality or sexual lifestyle when determining custody where there was no finding of an adverse impact on the child.

The opinion is here.

January is Divorce Month

Men’s Journal magazine is currently reporting that – while there may be no “good” time to divorce – many people have started to call January the “divorce month.” Why? Because January is when there is a big increase in couples filing for divorce and child custody, or just scheduling appointments to speak with divorce and family lawyers.

January Divorce Month

Happy New Year

The timing is certainly no coincidence. January follows a busy holiday season. During this time, many people make New Year’s resolutions, which may cause you to want to hit the “reset button.”

“The pressure of the Christmas period where people are being exposed to their families and in-laws, often is the catalyst for people making the decision to end their marriages.”

Beyond dealing with extended family, there are a lot of financial pressures which can also be a “huge stressor” for families around this time of year. Add in inflation and the current cost-of-living, the holiday season can be difficult.

Many people also use January as a period of reflection because they are on holiday from work, and have the time to think about what is going on in life and what they might like to change.

The cold and holidays also forces many couples in close proximity with extended family. Many people are pushed toward a ‘new year, new me’ mindset because they are spending more time with their significant others, spouses, and family than any other period throughout the year.

Florida No-Fault Divorce

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.

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.”

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.

New Year, New You

In a University of Washington study, researchers analyzed filings in Washington state and found that divorces consistently peaked in March and August.

Associate sociology professor Julie Brines, who co-authored the study, says that winter and summer holidays are typically seen as “culturally sacred times for families,” and that filing for divorce can be seen as inappropriate, or even taboo, during these times.

Many couples ostensibly might think that spending Christmas together or taking the family on a summer vacation might help smooth over any marital troubles.

People tend to face the holidays with rising expectations, despite what disappointments they might have had in years past. They represent periods in the year when there’s the anticipation or the opportunity for a new beginning, a new start, something different, a transition into a new period of life. It’s like an optimism cycle, in a sense.

In any case, January is here. Happy new year.

The Men’s Journal article is here.

Child Custody, Religion and Sweat Lodges

For many parents, religion and child custody disputes can make you sweat. After a father in Nebraska is enjoined from taking his son to his Native American tribal sweat lodge, he raises the freedom of religion as his defense. How will the court balance freedom of religion with child custody?

Child Custody Sweat Lodge

Sweating the Small Stuff?

The parents have an 11-year old son. The parties never married, and their relationship ended 10 years ago. In 2015, the father was in a severe automobile accident in which he collided with a wall at 75 miles per hour. He suffered a broken back, a traumatic brain injury, and bleeding in his brain.

At that time, a court adopted the parents’ joint stipulation that the mother receive sole physical and legal custody and the father received parenting time set out under their parenting plan. Six years later the father asked to modify the Order. In addition to answering the modification petition, the mother tried to enjoin the father from taking their son to sweat lodges.

A sweat lodge is a hole which holds stones that have been warmed by fire, inside layers of tarps and blankets. The father’s best estimate of the temperature inside the sweat lodge is 100 degrees at most. The amount of time inside the sweat lodge with the door closed is usually 45 minutes, although the amount of time at the sweat lodge is usually 1½ hours.

The father wants his son to be involved with his activities. He defines an “Indigenous life” as “spirituality,” a way of life more than a religion. He fears that by not allowing his son in the sweat lodge, its participants will not be able to include him in prayers.

Additionally, the child will not be able to hear stories of his ancestors, because the elders with such wisdom tell those stories only while in the sweat lodge. He argues an injunction his son from participating in sweat lodges violates his First Amendment rights.

Conversely, the mother believed sweat lodges are unsafe. Her son takes Clonidine for his ODD, which affects his blood pressure. Neither parent checked with the child’s doctor to ensure the sweat lodge would not have a negative interaction with the Clonidine.

The trial court enjoined the father from taking his son to the tribal sweat lodge.

Florida Religion and Child Custody

I’ve written about the intersection of religion and divorce – especially as it relates to vaccinations. 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 grew over time in various cases.

That’s because placing restrictions on a parent’s right to expose his or her child to his or her religious beliefs have consistently been overturned 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.”

Sweat today, smile tomorrow!

Generally, the First Amendment guarantees “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Additionally, parents have a constitutional right under the Free Exercise Clause of the First Amendment to exercise religious practices and spiritual beliefs with their child.

When a court finds that particular religious practices pose an immediate and substantial threat to a child’s temporal well-being, a court may fashion an order aimed at protecting the child from that threat.

In this case, although there was testimony regarding prayer and spirituality related to the sweat lodge, the appellate court found that the father’s participation in a perspiration ceremony did not constitute a religious practice.

The father was not an enrolled member of any tribe, he really wanted his son to experience the sweat lodge – not only to learn more about Native American culture – but also because he thought it taught his son self-control.

Moreover, a witness testified that people from all religions participate in sweat lodges, and do not need to be tribal members. The mother testified that religion was not practiced at the sweat lodge. Instead, the mother described it as “part of the Native American culture” and posed a danger to the child. Neither parent confirmed with a healthcare professional whether the sweat lodges could adversely interact with the child’s medication.

Because the trial court found the mother’s testimony persuasive that the sweat lodges posed a threat to the child’s well-being, it determined it was in the child’s best interests to restrict his ability to enter the sweat lodge. The higher court find no abuse of discretion in that decision.

The opinion is available at Reason.

Divorce and Euthanizing the Family Pet

A New York court recently had to decide whether euthanizing the family pet without the knowledge or consent of the other parent during a divorce action violated a New York status quo order. To answer that question, the court had to first determine if the family dog was a marital asset to be distributed or a matter of custody and visitation.

pet custody 2

Cruel and Unusual?

The divorce was in May of this year. The Husband argued that the Wife vindictively violated an Automatic Order by putting their beloved family pet dog “B.” to death without reason, necessity or justification.

“B.” was their emotional support dog, and B.’s custody had not been determined. The Husband testified the Wife did not discuss B.’s medical condition or even give him an opportunity to spend time with B. before putting the dog down. As a result, he suffered extreme emotional distress over their dog’s death. The Husband asked for compensation for this loss in the amount of $1,500 as punitive damages and filed for contempt of court.

The Wife, on the other hand, argued that after the husband returned to the house with the police, he did not take the dog. The Wife also argued that the Husband’s pet was not an emotional support animal, could not even walk without a severe limp, had “too many” masses to count, and was on significant pain medication.

She also argued that she was given a prescription for a tranquilizer for the dog, transported the dog to the Vet, and the dog lunged at the Vet. Because of that, it was the Vet who recommended euthanasia.

The Husband responded that the family dog was adopted from a shelter, and that he was the dog’s sole caregiver. He denied that he was informed of the pet’s conditions, that she had the dog euthanized without his knowledge and consent. He argued that there was no urgent need for B.’s euthanasia.

Florida Pet Custody

I’ve written on the development of pet custody cases and statutes around the country before. Pet custody cases are becoming more and more prevalent as lawmakers promote the notion that the legal system should act in the best interests of animals. This is due, in part, because pet ownership has increased.

According to the American Veterinary Medical Association (AVMA), 36.5% of American households owned a dog and 30.4% owned a cat in 2012. As many of these households know, companion animals usually become members of the family.

Florida doesn’t have pet custody or visitation laws. Florida courts are already overwhelmed with the supervision of custody, visitation, and support matters related to the protection of children.

Not all states have ruled out a visitation schedule for dogs like Florida. For instance, while Texas also views dogs as personal property, in one case a Texas court authorized visitation. A new California law changed the way pet custody is handled in divorce cases. The law gives judges the power to consider the care and the best interest of the pet when making decisions.

It’s Up to You New York

The Court reviewed the text of the Automatic Orders which state that neither party can sell, transfer, encumber, conceal, or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with this action.

New York Automatic Orders are codified by a statute which is devoid of any reference to companion animals. Companion animals are not listed, nor provided in, the text of the Automatic Orders. The text of the statute only proscribes the disposition of property.

Additionally, the purpose of the law was to preserve the financial status quo of the parties. It accomplishes that goal by preventing a party in a divorce from dissipating assets in order to deprive a spouse of the property which may have monetary value.

New York statutes include pets in the equitable distribution of property section, but they also are part of the best interests analysis. Questions naturally come to mind. Was it the intent of the Legislature to continue to treat animals as property? Given that the drafters of the statute failed to include any definition – or guidance – as to how courts are supposed to determine “best interests” of animals, the Court is effectively left in a legal vortex to figure it out on its own.

The Court reasoned that the intent of the Legislature was to shift away from treating companion animals as property and ensure that they are given more consideration. Viewed in this way, the husband’s motion sounded punitive in nature, which is the antithesis of an application seeking an adjudication of civil contempt.

Additionally, even if the Court were inclined to find the Wife in contempt of court, the amount of the fine would be limited to $250. The husband had not proved the actual value of his loss of the dog and had not shown that actual loss or injury had been caused.

The court held that the euthanasia of B. the pet dog did not constitute a violation of the Automatic Orders even though the euthanasia was performed without a court order or agreement.

The opinion is here.

Grandparent Visitation and Remarriage

In Ohio, an order granting grandparent visitation comes into question after the remarriage of the child’s father. Does the father’s remarriage, and the adoption of the child by the new stepmother, cut off the grandmother’s court ordered visitation rights?

Grandparent Visitation

The Heart of It All

The child. L.S. was born in 2014, to unmarried parents. In 2019, a court awarded John Snyder – the child’s natural father – legal custody. At the same time, Zadunajsky, L.S.’s paternal grandmother, was granted companionship rights with the child.

Then in 2021, Snyder filed a motion to terminate or modify the grandmother’s visitation order because the child has now been adopted by his stepmother, and there is an intact family. The lower court granted the Father’s Motion for Termination without any hearing or the proffering of any evidence.

Instead, the magistrate ruled as a matter of law that in Ohio:

Once the adoption took place, the Paternal Grandmother no longer had standing to seek visitation. Once an adoption order has been entered, all grandparent visitation rights are terminated.

The lower court held there was no case law in Ohio that allows a court to grant or maintain established visitation once an adoption is granted. The legislature has not provided grandparent visitation in the case of an adoption.

This legal reality is very frustrating to courts because the main issue should be what is in the best interest of the child. The lower court also held that the Paternal Grandmother would only have standing to seek visitation upon the death of Father or the divorce of the stepmother.

The grandmother appealed arguing that an adoption by the step-mother of the child was a proper basis for terminating the pre-existing visitation of the paternal grandmother.

Florida Grandparent Visitation

Under current law in Florida, a grandparent may be awarded some visitation rights in very limited situations, such as when the child’s parents are deceased, missing, or in a permanent vegetative state. If only one parent is deceased, missing, or in a permanent vegetative state, the other parent must have been convicted of a felony or a violent offense in order for a grandparent to be able to petition for visitation.

Additionally, a Florida court has to also find that the grandparent has established a prima facie case that the surviving parent is unfit or poses a danger of significant harm to the child. If that burden is not met, the court must dismiss the grandparent’s petition.

In 2022, Florida amended the grandparent visitation law as a result of the murder of FSU Professor Dan Markel. Supporters of the amendment call it the “Markel Act.” Professor Markel was shot to death in his driveway by hitmen hired by his ex-brother in law. His ex-mother in law was recently arrested at Miami International Airport after attempting to board a one way flight to Vietnam.

The new law creates a rebuttable presumption for grandparent or step-grandparent visitation, but only in cases where one parent has been found criminally liable for the death of the other parent, or “civilly liable for an intentional tort causing the death” of the other parent.

The presumption may be overcome only if the court finds that visitation is not in the child’s best interests. The bill does not distinguish between biological grandparents and step-grandparents.

Somewhere in Ohio

The Ohio appellate court agreed with the grandmother and reversed. The opening words of the statute exempt a spouse and the relatives of the spouse from the effects of a final decree of adoption. As Snyder was spouse of the adopting stepparent and Zadunajsky was a relative of Snyder, they are exempt from those effects.

The Father also argued that previous cases affirmed divesting biological grandparents of their visitation and companionship rights. However, the legislature’s intent was to find families for children. The legislature was concerned that if adoptive parents are forced to agree to share parenting responsibilities with people they don’t know, potential adoptive parents will be deterred from adopting. But that legislative intent did not apply to the relatives of the spouse/biological parent in a stepparent adoption.

On remand, the family court may consider whether the continuation of Zadunajsky’s companionship rights is in the best interest of the child in light of the stepparent adoption.

The opinion is here.