Do Rapists Have Child Custody Rights

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, March 20, 2015.

In 31 states, a man who impregnates a woman through rape can sue her for child custody and timesharing rights. There are bills pending in Ohio and Pennsylvania addressing that issue.

According to an NPR radio station in Pittsburgh, Pennsylvania State Senator Randy Vulakovich and Representative Joe Hackett are introducing the Rape Survivor Child Custody and Support Act in the Senate and House, respectively.

Under there bill, courts have the authority to terminate the parental rights of a father or mother convicted rapist. But at the same time, the rapist’s obligation to pay child support will remain.

I’ve written before about rape and custody. The issue of consent is important to the crime of rape, but is irrelevant in a civil action to determine paternity and child support.

Each year, there are approximately 32,000 pregnancies resulting from rape, according to a 1996 study by the American Journal of Obstetrics and Gynecology.

Vulakovich says his bill will close a loophole in the law that is damaging to sexual assault survivors.

“If a victim of a rape decides to keep a child who was conceived because of the result of a rape, she could be forced under state law to constantly interact with a rapist on a regular basis if he demands visitation rights.”

Currently in Pennsylvania, a rapist’s parental rights are only terminated pending adoption of the child, in which case the offender is no longer required to pay child support.

“We’ve had calls from women who are exasperated,” Houser said. “The callers will feel like…’I’ve done everything right, I’ve done all the things I was supposed to do, and now I find out that he’s petitioning for visitation.'”

According to the most recent data, a 1996 study by the American Journal of Obstetrics and Gynecology, approximately 320,000 women become pregnant as a result of rape. However, roughly one third of those pregnancies are terminated.

Houser says there are no clear statistics on pregnancy from rape in Pennsylvania. She also said few rapists try to pursue their visitation rights. State courts have the power to prevent unfit parents from claiming their visitation rights for several reasons, including crimes against the other parent.

“This isn’t necessarily the result of egregious things happening on a regular basis here in Pennsylvania,” Houser said, “but it doesn’t matter if it’s happening to a lot of people or just a few. It shouldn’t be happening at all.”

Without such a law, woman can endure years of being tormented by an abuser,” said Rep. Debbie Wasserman Schultz, D-Florida.

The article is here.

Alimony Reform Picking Up Press

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Alimony on Monday, March 16, 2015.

The Miami Herald is reporting on the big changes to alimony being debated in a new bill. The Florida Legislature is considering a bill that would end permanent alimony, as well as set up formulas for time limits and amounts of alimony.

As the Miami Herald reports, Rep. Colleen Burton and Sen. Kelli Stargel, both Polk County Republicans, the sponsored bill (HB 943) which calls for payments that would last to between 25 and 75 percent of the length of the marriage.

I’ve written about alimony reform many times in the past, and especially the formulas for calculating both the amount and the term for alimony in earlier posts.

The bill’s supporters want an end to lifetime payments, saying recipients use existing law to extort a meal ticket even when they could work.

Opponents say ending permanent alimony would make it impossible for mothers to stay home with their children, for fear of being left destitute, and punish women who give up careers to keep a family functioning.

“You can find extremes on both sides,” exploited alimony payers and recipients not getting just compensation, Burton said. In many cases, she said, awards vary widely in cases with similar circumstances.

“We’re attempting to provide direction to the courts and some parameters as to what people can expect.”

Stargel has pushed alimony changes for years, including a 2013 bill that Gov. Rick Scott vetoed because it retroactively applied to divorces that were already finalized.

She said the new bill, which wouldn’t be retroactive, is a negotiated compromise and expects former opponents, including the Florida Bar’s family law section, to support it.

But supporters of the current system are strongly opposing the measure.

Cynthia Mayer of Ponce Inlet, a member of the First Wives Advocacy group, called the bill “anti-women and anti-traditional family,” and said it could put alimony recipients, 97 percent of them women, on welfare in their later years.

Another member, Cathy Jones of Lakeland, called it “the end of the stay-at-home choice for women in Florida.”

Jones said she quit work at her husband’s request while they were married so she could rear their children and create a social life to help his career.

Now, she said, he’s a millionaire whose hobby is exotic cars, while her net worth is $70,000; her mortgage won’t be paid off until she’s 84.

“Women like me are reliant upon alimony,” she said.

Asked whether Scott would back a bill that’s not retroactive, spokeswoman Jeri Bustamante said he “will review any legislation that comes to his desk.”

Florida Alimony Reform Update

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Alimony on Wednesday, March 11, 2015.

With the Legislature in session, alimony reform in Florida is on the top of everyone’s minds. Last week I pointed out the heart of the new statute, alimony guidelines. But there are some other new updates in the bill.

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Income and Potential Income

Under the current statute, income is not well defined. Under the proposed law, there will be an extensive list of what income is for alimony.

There is also a new item: “potential income”. Potential income is income which could be earned using your best efforts. In other words, if you were employed before, potential income is the income you could earn by working at a locally available, full-time job commensurate with your education, training, and experience. If you have investments, it would be the reasonably expected return from your investments.

Underemployed

Are you underemployed? Under the new statute, “underemployed” means you are not working full-time in a position which is appropriate, based upon your educational training and experience, and available near your residence.

Standard of Living

Standard of living was historically a major factor in awarding alimony. But under the proposed statute, the standard of living for two households will be presumed to be lower than a single-married household, and that judges must consider that fact.

Absolute Maximum Alimony Payment

The bill would limit the total alimony and child support payment by prohibiting the amount from exceeding more than 55% of the payor’s net income. Under the current statute there is no alimony maximum.

New Spouses

I’ve written extensively about the impact of a new spouse on discovery. Can you subpoena a new husband’s tax returns or take his deposition?

The financial information of a new spouse is inadmissible, and may not be considered as a part of any modification action, unless a party is claiming that his or her income has decreased since the marriage.

Even then, the financial information of the new spouse is discoverable and admissible only to the extent necessary to establish whether the party claiming that his or her income has decreased is diverting income or assets to the subsequent spouse that might otherwise be available for the payment of alimony.

Prevailing Party Attorneys’ Fees

The new bill requires the side that unnecessarily promotes or defends against an alimony modification to pay fees to the other side. This is popularly known as a “prevailing party” attorneys’ fee provision.

Besides the guidelines, which totally change the way alimony is decided in Florida, the new alimony reform bill contains a lot of new ideas and ways of deciding on the amount and term of alimony. The bill is something to follow.

House bill 943 can be read here.

March Madness: Florida Alimony Reform Update

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Alimony on Friday, March 6, 2015.

March starts the new legislative session. For alimony reform, a House bill has already been filed which changes alimony. And we’ll have an insulting new name for marriages, they’ll be called: Low End Marriages.

I’ve written about alimony reform before. Florida may be getting alimony guidelines, which may take some guess work out of alimony, but many will be unhappy with the amounts and length of alimony.

How much will your alimony be? The bill proposes two ways to calculate alimony: one for High End marriages, and one for Low End marriages. Whether your marriage is “high end” or “low end” depends upon how long it lasts.

If the marriage is more than 20 years long, than it’s a High End Marriage. If 20 years or less, it’s a Low End Marriage.

Alimony in Low End Marriages

The low end of the alimony amount range is a simple calculation: (0.0125 x the years of marriage) x the difference between the monthly gross incomes of the parties.

Ex) For a 20 year marriage, where the Husband and Wife have a $10,000/month difference in income, the presumptive alimony award would be $2,500/month.

Alimony in High End Marriages

The high end of the alimony amount range is calculated at a 2% of the term of the marriage: (0.020 x the years of marriage) x the difference between the monthly gross incomes of the parties

Ex) In a 21-year marriage, where the Husband and Wife have a $10,000/month difference in income, the presumptive alimony award would be $4,200/month.

How Long Will Alimony Last

How long will alimony last? That will also be a calculation too. If the marriage is Low End, the duration is 25% of the length of the marriage. If High End, the term would be 75% of the length.

Ex) For a 20 year marriage, the presumptive alimony term would be 5-years.

Ex) For a 21 year marriage, the presumptive alimony term would last 15.75 years.

If this passes, you’ve got to at least love Florida’s official new terms for marriages as “low end”. Really? Why not call them “Trailer Trash Marriages”?

This is not an opinion blog, but really, who thought THAT up? How much alimony is a judge likely to award in a “low end”, cheap marriage?

If the legislative intent was to insult the institution of marriage, officially calling them “low end” is a great way to do it.

There will likely be changes to the bill. Whatever its final version, alimony reform in Florida appears likely. I’ll have more to say on Florida Alimony Reform in other posts.

The House bill is available here.

Cohabitation & Divorce

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Wednesday, March 4, 2015.

If you live together (cohabitate) before marriage, are you more likely to divorce? Put another way, what are the odds you’d be in your relationship if you hadn’t been living with your boyfriend or girlfriend first? The answer is: You wouldn’t be.

In a recent survey, respondents who had a firm commitment to marry before moving in together didn’t experience the low levels of commitment to the relationship. They were “deciding, not sliding.”

Scott Stanley, the co-director of Center for Marital and Family Studies, created a video which describes the joy-inducing chemicals released into the body at the start of a relationship – from dopamine to oxytocin – and how they can actually cloud our decisions.

Sexual activity increases the production of these chemicals, but even just going out to dinner with someone you’re falling for can have this effect. Under the “influence” of these drugs, the video explains, we start doing things that “lock us in” to a relationship. We get a joint cellphone plan, we co-sign a car loan, we adopt a dog together.

But after a few months, things may look different. Suddenly you wake up and realize that you don’t really want to be with this person. “You acted on the belief that you had a timeless love, but in reality you had a time-limited chemical high.” Yet you’ve made it extremely hard to disentangle yourself.

But it’s much more that keeps people in relationships past their expiration dates – including social restraints. People don’t assume the way they once did that shacking up is a step on the way to marriage, but most of your friends will still figure that living with a guy is a step closer to walking down the aisle.

For many women, that’s the point: Talk the guy into living with you, and you’re halfway to a ring. Many men aren’t thinking that. But, according to Stanley’s research, even the ones who do wind up proposing may have more regrets after the fact.

In a random-sample study published in the Journal of Marriage and Family in 2010, 20% of people who married before living together had divorced; the divorce rate was notably higher, 28 percent, for those who cohabited before even getting engaged.

The video suggests that people beginning a relationship keep their own apartments, cars and cellphone plans. Instead of a dog, maybe jointly adopt a goldfish.

The more you can get to know your possible life-mate without locking yourself in, the better chance you have of breaking up with the wrong person and finding the right one. This used to be called “dating.”

The New York Post article on the survey is here.

Pet Custody and Prenups: The ‘Pup Nup’

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Wednesday, February 25, 2015.

Who gets custody of the family dog? There is an uptick in people fighting over their cats and dogs when they divorce. The battle is contentious, as your dog is a family member. Can a prenup help?

I’ve written on this topic before. Your pet dog may be considered by you to be a member of the family, but under Florida law, Brownie the chocolate Lab, is merely personal property to be divided.

Not all states have ruled out a visitation schedule for dogs. For instance, while Texas also views dogs as personal property, in one case a Texas court authorized visitation.

Florida doesn’t because Florida courts are already overwhelmed with the supervision of custody, visitation, and support matters related to the protection of children, that courts cannot undertake the same responsibility as to animals.

Recently, some New York courts have ruled that pet custody divorce disputes are treated differently than other divorce disputes. Unlike a child custody fight, pet custody fights are resolved on a “best for all concerned” standard.

A CBS news report showed many couples have entered into “Pup-Nups” -agreements specifying who gets custody of the pet in the event of a divorce, who pays the veterinary costs, and who is responsible for caring for the family pet.

A prenuptial agreement could make provision for visitation after a break-up. But is it enforceable?

In New Jersey, a court did order shared custody of a pet. After the parties broke off their engagement, the ex-girlfriend allowed her ex-boyfriend to have visitation with Dexter, the dog. The ex-boyfriend refused to return Dexter. The court found that pets are a special category of property and enforced the parties’ oral agreement allowing them to spend alternating, five-week stretches with the dog.

Many states may not uphold pet custody clauses though. In Pennsylvania, for instance, a couple signed a settlement agreement that gave the wife custody of the dog, and provided the husband with visitation. The court explained that Pennsylvania considers dogs to be property, and the Husband’s motion to enforce visitation under the contract was void.

Despite the current law, a pet is a special kind of property. Pets are unique and irreplaceable. Pets are more like antique or valuable art than a generic table, lamp, or toaster.

Another Presumption of Equal Timesharing

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Monday, February 23, 2015.

The Florida legislature passed a bill making a presumption of equal timesharing mandatory. The bill was vetoed by the governor. Is another bill likely? If Nebraska is any indication, the answer is yes.

Last week a Nebraska senator introduced a bill that would encourage judges to more fairly divide custody between separated parents, and requires that judges split custody by at least 65/35, unless there are circumstances in a case that warrantless visitation.

The senator says it’s important for kids to have both parents in their lives.

“Parents and kids alike, you know, thrive off of each other. The things that a young lady or a young man get from their parents are different. Moms and dads are different creatures and so it’s good for them to have exposure to both.”

She added that the bill would also benefit extended family members.

“If you’ve got one parent getting significantly less time with their kids, it also means that their grandparents may be getting less time with their kids. I’ve had several grandmothers call me and say hey, my son only gets one weekend a month with his kids which means that I never see my granddaughters.”

Last year I spoke at the FLAFCC regional workshop discussing the pros and cons of the equal timesharing presumption. I’ve also written about it before.

Fifty-fifty timesharing between parents sounds like a great idea, and there are strong arguments for and against a presumption of equal timesharing. Here are some of the arguments for and against a presumption in favor of equal timesharing:

Pro

Each year, cases are tied up in court to establish a right to see their children that they would automatically have if they were married.

An equal time presumption promote Florida’s existing policy of frequent contact after divorce.

Equal timesharing puts the burden on the parent opposing equal timesharing, changing the dynamics of custody litigation.

Equal timesharing is consistent with Florida’s existing no-fault concept.

Con

Requiring every family to have equal time-sharing is like requiring every family to wear a size 4 shoe. Not every family fits.

The presumption creates a uniform rule where the flexibility of ‘the best interest of the child’ is needed.

Requires courts to focus on QUANTITY of time instead of QUALITY of time.

Requires courts to focus on what’s best for the parents instead of what’s in the child’s best interest.

With the 2015 Legislative session starting next month, and bills in committee, this is an interesting area to keep your eye on.

The article on Nebraska’s new bill can be found here.

Facebook & Divorce

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

Facebook has revolutionized the way we form and keep relationships. However, Facebook envy could actually ruin a relationship and lead to divorce. This is especially true for new marriages, and new research may prove it. There is no doubt Facebook evidence pops up in more trials.

Facebook users were asked to describe how often they used Facebook and how conflict arose as a result of Facebook use. The results found high levels of Facebook use significantly predicted Facebook-related conflict, which then significantly predicted cheating, breakups, and divorce.

“Previous research has shown that the more a person in a romantic relationship uses Facebook, the more likely they are to monitor their partner’s Facebook activity more stringently, which can lead to feelings of jealousy”.

The study also found that excessive Facebook users are more likely to connect or reconnect with other Facebook users, including previous partners, which may lead to emotional and physical cheating.

“These findings held only for couples who had been in relationships of three years or less“. “This suggests that Facebook may be a threat to relationships that are not fully matured. On the other hand, participants who have been in relationships for longer than three years may not use Facebook as often, or may have more matured relationships, and therefore Facebook use may not be a threat or concern.

I recently published an article about Facebook evidence and divorce. I wrote about the benefits and obstacles in gathering and using Facebook evidence at trial.

After all, the evidence can be very helpful:

Husband . . . [posts] his single, childless status while seeking primary custody of said nonexistent children.

Mom denies in court that she smokes marijuana but posts partying, pot-smoking photos of herself on Facebook

Remember, the next time you log in, what you do in the digital world could have a very impact in the real world.

The University of Missouri study can be read here.

Mickey, Measles & Custody

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Wednesday, February 4, 2015.

The recent outbreak at Disneyland has resulted in more measles cases in one month than the typical number in a year, and has spread it to 14 states. This highlights the link between vaccinating children and custody.

Because of the return of vaccine preventable diseases – some of which were eliminated decades ago – a national discussion is occurring about vaccinating children.

But can the refusal to vaccinate impact your custody case?

I’ve blogged about vaccines before, not vaccinating a child can be detrimental:

– Contracting measles or whooping cough is harmful to a child.

– Public health and school officials send unvaccinated children home from school during outbreaks.

– Unvaccinated children are barred from birthday parties and play dates.

Why do a minority of parents not vaccinate? One reason is fear of autism. The anti-vaccination hysteria can be traced back to a paper by Andrew Wakefield published in the disgraced British medical journal The Lancet.

Wakefield claimed the measles-mumps-rubella (MMR) vaccine was linked to autism. His study was later deemed “fraudulent” and Wakefield was stripped of his medical license.

But the damage was done. MMR vaccination rates declined and California officials have recently determined that the vast majority of those infected never received the MMR vaccine.

The minority of children who are not vaccinated have a big impact. The concept is called herd immunity. If vaccination rates are high, vaccinated people act as a barrier and reduce the risk of infection for people who can’t be immunized.

In Florida, there are two leading cases in which the issue over custody and vaccination was brought to trial and appeal. My new article briefly examines Florida’s parental responsibility statute, including the concept of ultimate authority.

The two Florida cases in which the decision to vaccinate a child was an issue brought to trial is also discussed, and the article traces the development of religion as a factor in parental responsibility cases in Florida.

The article can be read here.

Spanish Prohibited: Custody & Freedom of Speech

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Sunday, February 1, 2015.

Florida courts have a lot of power to protect children in custody cases. Does that mean a judge can order you not to speak to your child in Spanish? An appellate court outside Tampa just answered this question, balancing child protection and freedom of speech.

In Perez v. Fay, a mother went from being the primary caregiver to having only supervised time-sharing twice weekly for 4-hours under the nose of a timesharing supervisor. The trial judge also allowed her daily telephone calls with her daughter, supervised by the Father.

The Mother was Venezuelan, and because the Father did not speak Spanish, the court ordered: “Under no circumstances shall the Mother speak Spanish to the child.”

The judge was concerned about the Mother’s comments, after the Mother “whisked” the child away from the time-sharing supervisor in an earlier incident, and had a “private” conversation with her in a public bathroom. She was also bipolar and convicted of two crimes.

Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy. The Second District Court of Appeals, which covers Tampa and Southwest Florida, reversed the restriction.

Two of the three judges overturned the order on technical grounds. But it was Judge Wallace who makes the Constitutional argument in an excellent concurring (separate) opinion:

The trial court’s order also violates the Mother’s most basic rights. More than ninety years ago, the United States Supreme Court declared that the agents of the state may not tell parents what languages they may teach their children.

Here, the trial court’s order improperly infringes on the Mother’s constitutional right to determine the language or languages about which her child may receive instruction.

In addition, the Florida Constitution guarantees its citizens the right of privacy . . . “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.”

Undoubtedly, the sphere of private life in which one must be let alone, free from governmental intrusion, includes the right to speak with one’s child in the language of one’s choosing and not to have that choice dictated by the agents of the state.

Sadly, the trial court’s order in this case prohibiting the Mother from speaking Spanish to her daughter is not an isolated incident. One commentator reports that trial judges in Texas and Nebraska have issued similar edicts prohibiting parents from speaking Spanish to their children.

In my view, Florida’s trial courts have no business telling parents what languages they must speak or must not speak with their children.

More analysis about the case comes from the Washington Post, Volokh Conspiracy.

The opinion of Perez v. Fay can be read here.