Homeschooling and Child Custody

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Wednesday, August 20, 2014.

Joint child custody, or shared parental responsibility, is frequently ordered in Florida, and requires parents to jointly make decisions. What happens if parents disagree about where their children should go to school?

Issues relating to education are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court. At the trial, the test applied is the best interests of a child.

Determining the best interests of a child in Florida is not entirely subjective, but based on an evaluation of statutory factors affecting the interests and the circumstances of the child’s family.

Courts should limit themselves to the statutory factors, but judges – like the rest of us – have their own biases. This is frequently seen in cases against homeschooling.

A new case out of Kansas about homeschooling, and reported by The Volokh Conspiracy, shows this bias.

In the Kansas case, the trial judge ruled:

” . . . I’m granting primary custody to Mr. Rocha for a number of reasons, one of which is . . . he appears to understand that the benefits of education aren’t just what you learn, it’s – the socialization and interaction with other students, which are important, that cannot be achieved by homeschooling.” The judge added “that [the mother] is educating the girls for the Fifteenth Century, not the Twenty First Century.”

Did you catch that flicker of bias in the judge’s ruling comparing homeschooling to an education for the 15th Century? The appeals court disagreed:

The trial court’s statements that socialization and interaction with other students cannot be achieved by homeschooling are unsupported. . . There is no evidence to support the trial court’s homeschooling comments in this case.

The court of appeals upheld the trial court’s decision to award the primary custody to the Father, even though it disagreed with the homeschool ruling.

The appellate court also noted a Pennsylvania case which weighed educational decisions on a “case-by-case” basis, and used the best interests of the child standard.

There is no Florida case on point, but the Pennsylvania case and the recent Kansas case are probably the correct approach.

One thing to avoid is allowing family court judges to rely on their feelings of whether homeschooling is better or worse for children. A judge has to base the decision on substantial and competent evidence in the record.

The Volokh Conspiracy post is here. The Kansas case is here.

Out of State Custody – Parent Relocations

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On behalf of Ronald H. Kauffman, P.A. posted in Relocation on Monday, August 18, 2014.

When a parent moves more than 50 miles from their residence with a child, we call it a child custody. If both parents agree, an agreement must be entered. But if a parent objects, a judge must decide before a parent can move away.

I’ve spoken on this topic earlier this year, and the issue frequently comes up at the start of a new school year. Relocations are governed a Florida Statute. Before passage of the law, parents frequently moved the child to a different city or out of state without consent.

Under the relocation statute, parents have to agree or a judge will have to determine whether to allow a parent’s request to move the child. Whatever is in the best interest of the child is considered paramount.

Deciding whether to permit the move-away of a parent is complicated. In order to decide the best interests of the child, there are no presumptions in favor or against a relocation under Florida law.

Instead, the court must consider statutory factors such as:

  • The child’s relationship with the parents,
  • The age of the child,
  • The quality of post-move contact,
  • The child’s wants,
  • Will the move enhance the quality of life
  • Reasons for relocating,
  • Economic circumstances,
  • Is the request made in good faith, and
  • Is there a history of abuse.

Relocation cases are governed by a very technical statute, with deadlines and requirements that are specifically stated and enforced. Mistakes are commonly made by the inexperienced, which can be devastating to your case. Both parents are well served by a lot of preparation and sound legal advice.

The relocation statute is available here.

Transgender Divorce: Married Pregnant Man Can Divorce!

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On behalf of Ronald H. Kauffman, P.A. posted in Same sex/GLBTA on Thursday, August 14, 2014.

One thing about matrimonial lawyer work, it never gets boring. A landmark case yesterday is the first to recognize a transgender person’s right to divorce. It also happens to be the first married, pregnant man’s divorce.

I’ve written about Tom’s case before. He was born a woman named Tracy. She was cute too, and participated in beauty pageants and worked as a model. The first of her surgeries were performed in 2002, and later, Tracy became Tom!

After a court hearing in December 2012, the trial judge ruled that Arizona did not have jurisdiction over Tom’s case and that Tom’s marriage was invalid under Arizona law as a “same-sex marriage.”

But a three-judge panel of the Arizona Court of Appeals overturned that order, and ruled that Tom’s marriage in Hawaii in 2003 is considered valid in Arizona, and concluded it wasn’t a same-sex union.

The Arizona Court of Appeals held:

We find the Family Court has subject matter jurisdiction to proceed with Beatie’s petition for Dissolution of Marriage and, ultimately, to enter a Decree of Dissolution, and therefore reversed the Family Court’s dismissal of Beatie’s Dissolution petition.

The court focused on the fact that Tom complied with Hawaii’s “clear and unambiguous” statute regarding sex change operations, and obtained a valid Hawaii marriage license.

The court specifically stated “there is no apparent basis in law or fact for the proposition that in the event Thomas gave birth after having modified his gender designation, it would have abrogated his “maleness”, as reflected on the amended birth certificate”.

Tom made headlines in 2008 as the World’s First Married Pregnant Man after being legally recognized as a man in 2002. As a married transgender male, he then gave birth to his three children from 2008 to 2010 and now resides in Arizona.

Tom said, “I feel I have finally been recognized in Arizona as not just a man, but a human being.”

You can read more about the world’s first transgender, pregnant male divorce here.

Do Daughters Cause Divorce?

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Sunday, August 10, 2014.

Knowing your baby’s sex can tell you a lot of things: like what color to paint the baby’s room, what baby gifts to get and . . . whether your marriage will end up in divorce court?

Studies have reported that marriages in which the firstborn are daughters are more likely to divorce than those producing firstborn sons. Researchers have observed a correlation between couples with daughters and their likelihood of divorce, which tends to be higher than for couples with sons.

Explanations abound: When adult sons live at home, they add to their parents’ workload. But when adult daughters live at home, they decrease the daily workload. Wives with daughters are less likely to stay with their husbands because with a girl, they’ll never be lonely or without help; and are less willing to tolerate bad husbands.

New research is showing the association between divorce rates and daughters might have more to do with what happens before birth. Female embryos tend to be hardier than male embryos, so girls may be surviving stressful relationships that boys can’t survive.

Using data from the National Longitudinal Survey of Youth (NLSY79), research has found that conflicts in relationships predict the sex of children born after the conflict and also predicts subsequent divorce.

Researchers are taking pains to point out that their study indicates the need for a change in how research is conducted. Typically, studies about divorce start after birth. This new research is showing that other factors come into play before a child is born.

It seems pretty basic that couples with children face big conflicts that have nothing to do with parenting. But this new research is showing these conflicts exist and cause tension in relationships before kids are even born.

You can read more about the study here.

Florida Gay Marriage/Divorce Update

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On behalf of Ronald H. Kauffman, P.A. posted in Same sex/GLBTA on Wednesday, August 6, 2014.

A Broward County circuit court judge overturned Florida’s same-sex marriage ban this week, in order to allow a same-sex divorce.

Heather Brassner, who has lived in Florida for years, formed a civil union in Vermont in 2002. They split up, and Brassner lost touch with her partner. She now has a new same-sex partner, and needs to get the civil union dissolved in order to marry. As Channel 10 news reports:

Broward Circuit Judge Dale Cohen ruled that Florida must recognize Brassner’s Vermont civil union for purposes of dissolving it so that she can marry her girlfriend.

I’ve written about the string of federal decisions which have struck down bans against same-sex marriages, and Judge Cohen’s decision was the third state decision in Florida. The earlier decisions, however, solely ruled on whether a same-sex couple was entitled to marry in Florida.

Judge Cohen was the first to rule that an out-of-state civil union must be recognized by Florida so that the couple can divorce in Florida. The judge stayed his decision “pending the outcome of expected appeals on similar issues recently ruled on by courts in Monroe and Miami-Dade Counties”.

In 2008, Florida citizens voted to amend the Florida Constitution to say: “Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.”

Just like those two prior rulings in Florida, Judge Cohen’s decision doesn’t mean marriage licenses will be issued right away. A stay is in place while the state appeals.

Legal Marijuana and Custody

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Monday, August 4, 2014.

A man lost child custody after getting a medical marijuana card. A couple has their child taken for growing medical marijuana. Police visit a home after a 9-year-old tells his teacher about his mother’s hemp advocacy.

As the News Journal, Delaware online, reports these cases were eventually decided in favor of the parents, but the incidents show a growing dilemma: possession of legalized marijuana in a state can become evidence in child custody or child abuse case.

I’ve written about this problem before. No data exist to show how often marijuana use comes up in custody disputes, or how often child welfare workers intervene in homes where marijuana is used.

But in dozens of interviews, the consensus is clear: marijuana’s growing acceptance is complicating the task of determining when kids are in danger.

Colorado considers marijuana use legal, but it is still listed as a Schedule I controlled substance, like heroin, under federal law. As a result, when it comes to defining a drug-endangered child, marijuana can’t legally be in a home where children reside.

Colorado lawmakers abandoned the effort to address this problem as too complicated. Among the teary-eyed moms at the hearing was Moriah Barnhart, who moved to the Denver area from Tampa in search of a cannabis-based treatment for a daughter with brain cancer.

“We moved here across the country so we wouldn’t be criminals. But all it takes is one neighbor not approving of what we’re doing, one police officer who doesn’t understand, and the law says I’m a child abuser,” Barnhart said.

“There are people who are very reckless with what they’re doing, leaving marijuana brownies on the coffee table or doing hash oil extraction that might blow the place up. Too often with law enforcement, they’re just looking at the legality of the behavior and not how it is affecting the children,” said Jim Gerhardt of the Colorado Drug Investigators Association, which supported the bill.

Colorado courts are wading into the question of when adult marijuana use endangers kids. The state Court of Appeals in 2010 sided with a marijuana-using dad who lost visitation rights though he never used the drug around his daughter.

The court reversed a county court’s decision that the father couldn’t have unsupervised visitation until passing a drug test, saying that a parent’s marijuana use when away from his or her children doesn’t suggest any risk of child harm.

This could hit us soon. The Florida Right to Medical Marijuana Initiative, Amendment 2 is on the November 4, 2014 ballot in the state of Florida as an initiated constitutional amendment.

Celebrity Divorces and New Gay Marriage Case

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Wednesday, July 30, 2014.

A wealthy celebrity divorce is always juicy news. Michael Moore’s is no exception. Not surprisingly, his divorce reveals that the couple fought over (what else?) their enormous wealth.

As the Washington Post reports, for the neighbors of Traverse City who boat past Moore’s home, tongues wagging, the $2 million, 10,000 square-foot property has been a symbol of Moore’s “do as I say, not as I do” lifestyle.

Back in 2009, a morning show invited Moore on the broadcast to bash Wall Street executives. Moore ranted against business leaders living in “gated communities” and “castles with motes around them.”

This lavish display of wealth hasn’t been lost on the couple’s neighbors. “He is not a common man. No way,” one neighbor told The Detroit News.

Moore and Glynn own nine properties in Michigan and New York, including a Manhattan condo that once was three apartments. His wealth is pegged at around $50 million.

New Same-Sex Marriage from the 4th Circuit Court

A federal appellate court just invalidated Virginia’s same-sex marriage ban. The 4th Circuit is the second federal appellate court, after the 10th Circuit, to strike down an exclusion of gay couples from marriage.

The Fourth Circuit held that the ban violated gay couples’ fundamental right to marry and placed heavy reliance on both Windsor and Lawrence v. Texas as establishing the equal validity of gay couples’ intimate and relational choices:

Lawrence and Windsor indicate that the choices that individuals make in the context of same-sex relationships enjoy the same constitutional protection as the choices accompanying opposite-sex relationships. We therefore have no reason to suspect that the Supreme Court would accord the choice to marry someone of the same sex any less respect than the choice to marry an opposite-sex individual who is of different race, owes child support, or is imprisoned. Accordingly, we decline the Proponents’ invitation to characterize the right at issue in this case as the right to same-sex marriage rather than simply the right to marry.

The opinion used the word “segregation” in striking the law:

Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.

The federal case of Bostic v. Schaefer can be read here.

New Study Shows the Reasons for Divorce

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Sunday, July 20, 2014.

Since the 1970s, the percentage of Americans who divorce has hovered between 40% to 50%. Using new data, a recent survey shows who wants out and why.

I’ve written about the reasons for divorce before. This new study notes that women are most prone to discontent in marriage: 20% of married women report having thought about leaving their spouse within the past year.

However, thoughts about separating – or conversations with one’s spouse or partner about exactly that – do not signify that a relationship is over: 13% of married respondents report having talked about separating.

Women also are far more likely to want out of their marriages than men: 55% said they wanted their marriages to end more than their spouses while only 29% of men reported the same.

For over 125 years, wives are consistently more likely to file for divorce than husbands. These results are resistant to time, which is surprising since economic opportunities for women have expanded dramatically – giving women outside options – and divorce laws have been altered, typically in their favor

The most-cited reasons for wanting a divorce were:

Infidelity by either party: 37% (28% spouse’s infidelity)

Spouse unresponsive to your needs: 32%

Grew tired of making a poor match work: 30%

Spouse’s immaturity: 30%

Emotional Abuse: 29%

Financial Priorities/Spending Patterns: 24%

Alcohol and Drug Abuse: 23%

Physical violence was a common reason listed by women seeking a divorce.

When married couples are asked about physical abuse, nearly identical shares of men and women say that they have experienced some form of physical abuse at least once in their marriage.

Are Muslim Postnuptial Agreements Enforceable?

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On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Tuesday, July 15, 2014.

Postnuptial property division, like prenups, help couples plan their future. Can agreements have Muslim or other religious principles in them? Illinois recently ripped one up.

I’ve written before about the enforceability of Muslim marital contracts. As the Volokh Conspiracy recently reported though, there is a new contract from Illinois that had some mixed non-religious and religious provisions. For example:

Husband shall name Wife as a tenant by the entirety of the property. Should Wife unreasonably file for divorce she will forfeit her right to any share of the home.

Husband and Wife agree to base their life and marriage on the Holy Quran and Sunnah, as practiced in the Islamic religion.

Husband and Wife agree not to call the police for any incident.

Husband and Wife agree that any violation of any of this agreement avails each party to forfeiture of all rights herein, including custody.

The Illinois appellate court said the contract was unenforceable. Not because you can’t have Islamic principles in a contract, but because the contract violated normal, non-religious principles. For example:

It gave the husband sole power to determine which parent gets custody of the children.

An “unreasonable divorce,” the linchpin on which the entire agreement turns, is vague, ambiguous, and uncertain.

The court also held the agreement was “substantively unconscionable” because it was so one-sided. The Wife forfeited all her rights to the largest asset, if she unreasonably filed for divorce, but not the husband.

Muslims, as all religious peoples, are entitled to enter into contracts that reflect their unique religious principles. But all agreements in the United States are limited by standard contract law, family law and Florida public policy.

The Volokh Conspiracy is here.

Divorce Timing

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Thursday, July 10, 2014.

Timing is everything they say. The right thing at the wrong time is the wrong thing. If so, is there a right time to divorce? The Wall Street Journal’s Market Watch seems to think so.

Right thing to do at the wrong time.

Say you’re hedge-fund billionaire Dave Tepper, and just separated from your wife after 28 years. Your net worth is about $10 Billion. Timing is definitely a factor in your decision to divorce.

If the Tepper divorce goes ahead today, it would very likely be less expensive if it happened before the 2009 financial crisis. A lot of stock traders were panicking in 2009. But Tepper bought shares of troubled banks and took in nearly $4 billion for himself.

Divorce timing isn’t limited to stock market booms and busts either. Consider whether you would want to divorce if you know your company was about to go public. What if your spouse was about to receive a huge bonus, or a big inheritance? If any of those apply to you, waiting may be the right move at the right time, or the right move at the wrong time, or, well you get the point.

I wrote an article about dividing property in divorce when the value of the home is underwater – where the mortgage is worth more than the property. This may be the time to put off the divorce decision.

As the Wall Street Journal reports:

During the housing market meltdown, there were often no liquid assets to distribute. The share of underwater mortgages fell to below 20% in the first quarter of 2014 for the first time in four years and it’s expected to fall to 17.2% by the end of this year, according to real-estate website Zillow. That gradual rise in house prices will help unhappy couples to live happily ever after financially.

There are also practical and emotional issues to consider. Do you want to get divorced a week before your daughter’s wedding, or your son’s bar mitzvah or an in-law’s funeral? How about when your kids are taking their SATs, EOCs, or FCATs?

Having a plan is meaningless. Planning is everything. (Dwight D. Eisenhower said that) If so, once you’ve decided to divorce, carefully planning comes into play.

The Market Watch article is available here.