Big Grandparent Visitation Rights Update

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Grandparent Rights on Monday, June 29, 2015.

Grandparents play an increasingly large role in raising grandchildren. Yet grandparent visitation rights don’t really exist in Florida. Will the new law passed this June change things? Starting July 1st we will find out.

Grandparent child custody and timesharing rights do not exist in Florida. But as American parents deal with both economic recession and family upheaval, grandparents have stepped in to help.

According to a recent survey, grandparents were the main caregivers for more than 3 million children in 2011 – a 20% increase from 2000, the Pew Research Center found.

I wrote an article in the Florida Bar Journal about grandparent visitation rights, and the attempts by Florida law makers to serve this big part of our population.

Two current statutory grounds for awarding grandparent visitation have been ruled unconstitutional by the Florida Supreme Court. Confusingly, these two provisions remain in the statute.

The laws were unconstitutional because compelling visitation with a grandparent based solely on the best interest of the child, without the showing harm to the child violates parents’ privacy.

Privacy is a fundamental right, and any statute that infringes on that right is subject to the “compelling state interest” test – the highest standard of review.

Florida is taking a new stab at having some form of grandparent visitation rights. House Bill 149 passed the House and Senate, and amends laws related to grandparent visitation.

The bill creates a new limited grandparent visitation statute:

(1) It allows a grandparent of a minor child whose parents are deceased, missing, or in a persistent vegetative state to petition the court for visitation.

(2) If there are two parents, one of whom is deceased, missing, or in a persistent vegetative state and the other has been convicted of a felony or certain violent crimes.

Grandparent must make a showing of parental unfitness or significant harm to the child, and also requires that grandparents try mediation and, if necessary, the court may appoint a guardian ad litem for the child.

Several factors are listed for the court to consider, including the previous relationship the grandparent had with the child, the findings of a guardian ad litem, the potential disruption to the family, the consistency of values between the grandparent and the parent, and the reasons visitation ended.

The bill limits the number of times a grandparent can file for visitation, absent a real, substantial and unanticipated change of circumstances.

The bill was approved by the Governor on June 11, 2015, and will become effective on July 1, 2015.

Big Same-Sex Marriage Update

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Friday, June 26, 2015.

The Supreme Court just decided Obergefell, ruling that the Constitution recognizes a right to same-sex marriage. This impacts Florida’s same-sex marriage and divorce problem.

I’ve written about same-sex marriage and divorce cases often. In Obergefell, Justice Kennedy wrote the opinion for the majority:

First – The right to personal choice regarding marriage is inherent in the concept of individual autonomy.

Second – The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.

Third – marriage safeguards children and families.

Fourth – Marriage is a keystone of our social order.

The majority holding:

The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.

Chief Justice Roberts is the primary dissenter:

Petitioners make strong arguments rooted in social policy . . . But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.

Justice Scalia advocated judicial restraint:

Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.

This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Justice Alito adds a twist:

[Today’s decision] will be used to vilify Americans who are unwilling to assent to the new orthodoxy. . . The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Obergefell v. Hodges can be read here.

Splitting Up: Equitable Distribution and Waste

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Monday, June 22, 2015.

Everybody reacts to their divorce differently. One German man got angry and vented his anger by splitting everything in half. Literally, he divided all the marital property in half. Is that the right way to do it?

As Fox News reports, the heartbroken guy posted a video which shows him cutting things in half: his sofa, a big-screen Samsung TV, and even his Opel Corsa car.

You can see what he’s selling on eBay, after cutting his half, and how much it’s priced at:

Half a teddy bear – €51 ($58): “Although she doesn’t need a stuffed animal to snuggle, there are affectionate fellow workers for that.”

Half an iPhone 5 – €78 ($89): “I generously left her half of everything, even my beloved mobile phone. That way she can no longer secretly send WhatsApp hearts to a younger work colleague. She doesn’t need it anyway as she lives with one.

Half a Samsung TV – €24.75 ($28): “Of course, also the TV that I have purchased so she can comfortably watch ‘Germany’s Next Top Model’ on it.”

Half an Opel Corsa – €62 ($70): “My ex-wife wanted 50% of all our things, including our beloved little city car. Although it’s not clear to me why she’d still want a dinky old Opel. Her new guy is impressively motorized, I hear.”

Four nice chairs’ halves – €36.50 ($41): “The chairs are super as an art installation, or simply for people who like to sit on half-an-ass cheek.”

Half a MacBook Pro – €81 ($92): “The radical ‘conversion’ was more or less an idea of my ex-wife. She wanted to replace her husband, but keep the money and beautiful things.”

I’ve written about property divisions before. In Florida, marital property is divided according to our statute. Unlike in community property states, Florida is an equitable distribution state, and we start with the principle that marital property is divided equitably – not always equally.

In Florida, a spouse’s financial contribution to the asset, or a spouse’s destruction of an asset (and even infidelity) can be taken into consideration when dividing property.

You should familiarize yourself with how Florida courts divide property. It will go a long way in helping you when trying to negotiate with your spouse.

Letting your anger get the best of you, may look funny in the news, but for the German ex-husband who just destroyed all of his marital property, his behavior will cost him.

Divorce & Free Speech

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Wednesday, June 17, 2015.

The colorfully named “The Pyscho Ex-Wife,” was a website launched by a divorcee to air his frustrations about his divorce. It turned into a battle over free speech. Can you publicly bash a parent, or does the best interests of the child beat free speech?

The Psycho Ex-Wife was a popular site:

“We have been through 3 custody evaluations, 6 false contempt petitions, 3 custody schedules, 1 psych evaluation, 1 false child abuse allegation, 2 false calls to the local sheriff’s office, 4 years of parental alienation, $80,000, 1 break in, 1 case of stalking, 1 restraining order, and we FINALLY have 50/50 custody of their children”

The blog quickly grew into a huge community, with a recommended reading list in which registered members discussed everything from mental health to legal issues.

The Wife complained to Pennsylvania, Judge Diane E. Gibbons judge, who ordered him to shut The Psycho Ex-Wife down.

“Father shall take down that website and shall never on any public media make any reference to mother at all, nor any reference to the relationship between mother and children, nor shall he make any reference to his children other than ‘happy birthday’ or other significant school events.”

“I don’t care if you guys fight in private,” Gibbons said in her ruling. “I don’t care what you do in private. But you are not going to do it in front of these kids.”

I’ve written about free speech and family law before. According to UCLA law school professor and First Amendment expert Eugene Volokh:

“The court order categorically orders the removal of a Web site, and prohibits all public statements – factually accurate or not – by one person about another person,” he wrote. “That strikes me as a pretty clear First Amendment violation; whatever the scope of family courts’ authority to protect children’s best interests might be, it can’t extend to criminalizing one adult’s public speech about another adult.”

In Florida, as under the U.S. Constitution, offensive speech is protected as long as it isn’t obscene, defamatory, or threatening to national security. Speech restrictions are ordinarily unconstitutional.

However, if the speech restrictions in family court are narrowly focused on preventing one parent from undermining the child’s relationship with the other parent, they may pass constitutional muster.

Professor Volokh’s exhaustive article published in the NYU Law Review is available here.

Same-Sex Divorce Update

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Thursday, June 11, 2015.

A year after being denied a divorce in Tampa, a same-sex couple appealed to the 2nd District Court of Appeal . . . and won. Fort Myers attorney, Luis Insignares, represented the appellant.

Danielle and Krista were legally married in Massachusetts in 2012. They subsequently moved to Florida. Once here, the marriage soured, and Danielle filed a petition for dissolution of marriage a year later.

Krista opposed the divorce, and in trying to stop it, argued that Florida did not recognize same-sex marriages, so the court could not dissolve her marriage.

Florida’s Defense of Marriage Act, supports Kristi’s argument. After trial, the circuit court judge agreed with Kristi, and dismissed the petition for divorce. Danielle appealed that dismissal order.

The Second District Court of Appeals reversed. The Full Faith and Credit Clause of the U.S. Constitution, requires Florida to recognize judgments obtained in the courts of other states, unless they violate public policy.

The Second District found that under Florida law, sexual orientation is not a protected class entitled to ‘strict-scrutiny’ analysis. The court applied a ‘rational basis’ analysis. The Court then went on to knock down every ‘legitimate purpose’ argument the State of Florida and Kristi raised.

For instance, the Attorney General claimed that Florida’s refusal to recognize same-sex marriages furthered Florida’s history of defining marriage as being between a man and a woman. However, refusing to allow Florida’s courts to dissolve same-sex marriages did not further this stated public policy in any manner.

The Second District panel was also concerned about denying parents access to court to undo a marriage:

The couple’s financial affairs remain intertwined, and their joint assets, if any, are not easily transferred . . . [this] impedes the flow of assets and capital. Particularly significant, the welfare and stability of a child parented by this couple remains in limbo. The fact that a child is involved implicates Florida’s strong public policy to protect children by determining custody matters in accordance with the best interests of the child.

I’ve written about the chaos in same-sex marriage law before. In November, after the 6th Circuit Court of Appeals upheld bans on same-sex marriages, I noted that the other circuit courts had come out the other way.

The 6th Circuit created a circuit split in our country. The U.S. Supreme Court is expected to issue a ruling within weeks about whether same-sex couples have a federal constitutional right to wed.

The Second District Court of Appeals opinion is here.

Divorce & Fraud

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, June 8, 2015.

People question their divorce agreements, suspecting their spouse lied. Two ex-wives in London are not just questioning, they’re taking their suspicions to the United Kingdom’s Supreme Court. What happens in Florida when one spouse suspects fraud?

As the Guardian reports:

Charles Sharland and Bhadresh Gohil are accused of concealing the value of their assets. Their former spouses are seeking to reopen financial negotiations on the grounds that the courts were provided with fraudulent evidence.

The hearing, before seven justices at the supreme court in Westminster, London, will assess whether non-disclosure entitles a claimant to reinstate a concluded divorce trial.

The applications by Alison Sharland and Varsha Gohil, both represented by the law firm Irwin Mitchell, have been joined for the justices to examine the impact of fraud on matrimonial disputes.

Sharland had accepted more than £10m in cash and properties from her ex-husband in the settlement but it later emerged that the shares in his company were worth considerably more than previously revealed. One estimate put the firm’s value at $1bn (£656m).

Gohil had accepted £270,000 plus a car in her divorce settlement in 2004. But it later became clear that her husband, who was tried and jailed for fraud and money-laundering sums of up to £37m, had not given the court accurate information about his finances

“Both cases raise serious issues about how the courts should handle cases where information shared with the court and used to agree a divorce settlement is later found to be false or incomplete.”

I’ve written about fraud in family law before. In Florida, it’s possible to overturn a final judgment based on fraud. But it’s not as simple as merely proving fraud.

That’s because there are different types of fraud. For example, did your husband lie to you about where the courthouse was, or did you lie to him about whether he was the father of your child?

Courts also feel pressure to make final judgments final. Claims of fraud therefore need a trial to explan the facts and circumstances. It is rare for a court to determine the presence or absence of fraud without a trial or some kind of evidentiary hearing.

Allegations of fraud involve the intent of the alleged wrongdoer, and require judges to evaluate the credibility of witnesses and the evidence. If you suspect there was fraud in your case, you will want to consult with a board certified expert marital and family attorney.

For the Guardian article click here.

Underwater Property Owners Get Thrown an Anchor

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Friday, June 5, 2015.

Divorce can be caused by fighting over financial problems. And Florida cities make up more than half of the “seriously underwater” areas. For couples treading water while holding crushing debt, this week’s U.S. Supreme Court case is like being thrown an anchor.

The U.S. Supreme Court just issued its opinion in Bank of America v. Caulkett. The issue was whether in a Chapter 7 bankruptcy, debtors can void a second mortgage when the home is worth less than the first mortgage: i.e. the value of the house is “underwater.”

David Caulkett’s Florida home was worth $98,000 when he filed for Chapter 7 bankruptcy, but he owed $183,000 on his first mortgage and $47,000 on his second.

David filed for bankruptcy and asked the court to rule that his second mortgage was voidable. It did. After losing in the District Court and 11th Circuit Court, Bank of America complained to the U.S. Supreme Court.

The U.S. Supreme Court followed its earlier decision, holding that a debtor in a Chapter 7 bankruptcy cannot void a junior mortgage when the debt owed on a senior mortgage exceeded the value of the home.

All is not lost though. I wrote an article about how underwater homes in Florida can still have significant value during divorces and separation. This is especially true if the parties are splitting, and want to immediately buy another homestead.

One of the largest exemptions Florida homeowners are entitled to is the homestead exemption, which can shield up to $75,000 of the value of a home before its taxable value is determined.

The “Save Our Homes” Florida Constitutional Amendment caps any increases in your home’s assessment to the lower of 3% of the assessment for the prior year, or the percent change in the Consumer Price Index.

Before 2008, the cap ended when you sold your home. But in 2008, Florida voters approved Constitutional amendment 1allowing homeowners to keep a portion of their cap differential, and transfer that portion to a new homestead.

The Caulkett case could dampen the ability of divorcing couples to sell, refinance, renegotiate mortgages, get HAMP workouts or ask for principal forgiveness. Worse still, in Florida a bank can get a deficiency judgment if the house sells for less than the amount owed.

For a great in-depth analysis of Bank of America v. Caulkett, read Amy Howe’s articles at SCOTUSblog.

Joint Custody Rights . . . in Saudi Arabia?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Tuesday, June 2, 2015.

Saudi Arabian courts received 84,000 child custody and related cases in the past few months. The flood of new cases is due to a recent decision allowing divorced women custody rights. Joint custody? Hardly, but this may show a trend.

A Member of the Shoura Council said that litigation in family affairs matters is guaranteed. Independent judges, known as “implementing judges”, apply penalties on those who do not follow rulings ordered by the family affairs courts.

Closer to home, it’s been more than two decades since Massachusetts father, Daniel Sabbatelli, was locked in a contentious divorce that ended with him getting limited access to his three daughters. The emotional toll hasn’t diminished.

As The Daily News of Newburyport reports:

“The courts don’t treat both parents equal,” he said. “It’s winner-take-all.”

Sabbatelli, a Woburn electrical contractor, is one dozens of advocates now arguing that parents should be entitled to equal custody of their children.

Groups like the Boston-based National Parents Organization, to which Sabbatelli belongs, have thrown support behind legislation that requires family court judges to consider “joint custody” in most divorce cases, unless a parent is deemed unfit, along with a raft of other proposed changes to custody laws.

But the changes have plenty of critics:

“Every case is different,” said Fern Frolin, a divorce attorney with the firm Mirick, O’Connell, DeMallie and Lougee. “And this isn’t a battlefield between moms and dads, it’s about what’s in the best interests of the children.”

I’ve written about child custody reform in Florida before. Last month the Florida House and Senate each tried to pass separate bills to change Florida’s child custody laws.

The bills had very different language, but both would have dramatically changed the laws of custody in Florida if the Legislature had not closed early, and they had been signed by the governor.

Worldwide, equalizing child custody laws is a trend. This was not the first time this issue arose in Florida, and next year, anyone interested in child custody laws should keep their eyes on Tallahassee.

The Daily News of Newburyport article is available here.

Circumcision & Custody: An Update

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Tuesday, May 26, 2015.

Let’s cut to the meat of the coconut: what does a court do when parents disagree in a custody dispute over circumcising their child? Florida state and federal courts have recently been trying to answer that question.

Last year’s Palm Beach County case made international news, and I wrote about it then. The parents entered into a written agreement to circumcise their baby. Their agreement was later incorporated into a court order.

The father, Nebus, still wants the circumcision performed, but the mother, Hironimus, changed her mind. Now she wants to modify the agreement. Hironimus initially told the Father she didn’t want the child exposed to anesthesia.

After filing her initial complaint though, the mother obtained the support of Intactivists – a group which opposes circumcision – and the Mother’s complaint has grown into a general, anti-circumcision campaign.

The trial judge ordered the enforcement of the parties’ agreement, and the Mother appealed. After losing the appeal, the Mother filed a federal case in the district court, which the Mother later dismissed.

But, with her legal options dwindling, the Mother made a huge error: she stole the child, ignored a court order requiring her to appear in court, and refused to give her consent for the surgery to be performed.

An arrest warrant was issued, but she wasn’t located until May 14 at a Broward County domestic violence shelter where she was hiding with her son. She was put in jail for contempt of court.

Brought before the judge last week, Hironimus again declined to sign a consent form for the surgery, and she was advised she would remain jailed indefinitely.

After the hearing ended, she reconsidered, and signed the consent form. Though the signature solved a contempt charge against her, she still faces a criminal charge of interference with child custody.

The executive director of Intact America, which advocates against circumcision, said the images of a distraught mother signing the form to allow the surgery show how she was “bullied” into it and that she doesn’t truly give her consent.

It is important to note that the judge did not order the circumcision. Instead, the judge enforced the parents’ written agreement. The court enforced it by designating the Father to make the ultimate decision for the circumcision.

This is an important distinction, because if both parents decided not to circumcise their child, the court would not compel it. The court is merely upholding a run-of-the-mill settlement agreement after one parent reneges.

More information can be found in the Sun Sentinel article.

Terrorists & Grandparent Custody Rights

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Grandparent Rights on Thursday, May 21, 2015.

Zachary Chesser threatened “South Park” creators for insulting Muhammad. Then he tried going to Somalia to join Al-Shabab. He brought his son to the airport to avoid suspicion. Does he, or the grandmother, have custody rights?

Zach’s plan didn’t work by the way. He was stopped at the airport. He was arrested and sentenced to 25 years in prison for attempting to support terrorists. He also pleaded guilty to threatening violence online.

Zach now lives in the supermax prison in Florence, Colorado. His wife, a Ugandan diplomat’s daughter named Proscovia Nzabanita, had to leave the United States after pleading guilty to lying about Zach’s plans.

This case raises grandparent custody rights because the fate of Zach’s 5-year old son Talhah is the center of a dispute being heard in a federal appellate court this week.

Zach is suing, Barbara Chesser, his own mother and a lawyer in the Office of the Attorney General, and her partner, and the FBI for money damages over how she learned of his plot to flee the U.S. with Talhah.

He alleges that FBI agents interfered with his parental rights by conspiring with his mother and her partner to ensure that Talhah could not travel to Jordan to live with his wife.

Talhah is being raised by his grandmother in the U.S. The grandmother filed for custody while her son Zach was behind bars waiting trial, and the mother, Nzabanita, was facing deportation. I’ve written about grandparent visitation before.

The Judge dismissed Zach’s lawsuit because there is no expectation of privacy for prison conversations, and no reason to object when the FBI disclosed the conversation to his grandmother. Zach appealed.

Virginia, where the custody case arose, allows grandparents to win custody over parents in certain circumstances. In contrast, grandparent rights to visit their grandchildren over the objections of fit parents do not exist in Florida.

But, Zach’s case is special given that a judge declared Zach and his wife unfit. If this case arose in Florida, there is a good chance that the grandmother could request some form of custodial rights.

Some facts about Zach may make any judge question his fitness. He allegedly converted to Islam after becoming infatuated with a girl. His father said Zach began wearing loin cloth in place of underwear. He threatened to kill South Park creators over a cartoon, involved his son in his attempt to join al Shabab – a group responsible for killing 148 students in Kenya.

On those facts, with no natural parents available to raise Talhah, even Florida would find some form of custodial rights available to the grandmother.

The Fox News report on the case is here.