Relocations with Children: Panel Discussion

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On behalf of Ronald H. Kauffman, P.A. posted in Relocation on Wednesday, February 19, 2014.

I recently was asked to speak on a panel at the Family Court Services, Lunch and Learn lecture series on the topic of divorce: Tough Choices. Can Children Win? If you were one of the 90 or so registered attendees, you had an opportunity to hear from a panel of experts in the legal, judicial and psychological fields on cutting edge issues in relocations. If you didn’t, here are some of the take away points:

Florida’s Relocation Statute is Highly Technical

Relocations, unlike much of family law, are highly technical. They involve fast deadlines, mandatory language, detailed service of pleading rules, font size requirements, detailed pleadings, and the list goes on.

Judges and lawyers report that lawyers are frequently overlooking key provisions of the statute, and children are losing in relocation cases because these strict pleading requirements and deadlines are not being met.

Florida’s Relocation Statute has an Intricate 11 Factor Analysis

There is no presumption in Florida anymore on whether you can move away with your child more than 50 miles from your principal residence for more than 60 days. That was the old rule.

Instead, courts must evaluate a relocation request based on 10 detailed and objective factors, and one catch-all factor. These factors cross over between legal standards developed over many decades litigation, and many psychological factors. The test begs the question of what kind of team do you need to assemble on your side to successfully relocate with your child in Florida.

Relocations with Children Involves Risk

There is always a probability of harm associated with relocations. Your child could face difficulties in adjusting to a new environment, or have developmental needs which are impacted. Or, they simply are baseball fanatics and a move to a country without a baseball league could be devastating.

Factors such as the age of the child, the distance of the relocation from the non-relocating parent, the stability of the parents, the level of involvement of both parents in the child’s upbringing, substance abuse, parental alienation syndrome, and other conflicts all are factored into a decision to relocate.

The clear take-away from the presentation was that relocations involve difficult decisions, courts are required to balance several psychological and legal factors, and the statute governing relocations in Florida must be strictly followed.

The event was hosted at the Family Law Courthouse, and was sponsored by Family Court Services. Kidside is a not for profit organization devoted to supporting Family Court Services. Kidside’s website is here if you are looking to support this great organization.

Speaking on Panel about Relocation Next Week

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On behalf of Ronald H. Kauffman, P.A. posted in Relocation on Friday, February 14, 2014.

I will be speaking on a panel hosted by Family Court Services on Wednesday February 19th from Noon to 2:00PM at the Lawson E. Thomas Family Courthouse. Anyone who practices in this area or is interested should attend.When one parent moves away with the children from another parent more than 50 miles for more than 60 days it is called a relocation in Florida.

One of the most difficult situations facing parents and children is when a parent wants to relocate to another city. These are called relocation cases. Florida is in the Sun Belt, and is naturally a very mobile society.

Residential moves are very common among parents after divorce. Parents want to pursue new job opportunities, earn a degree, and return to their home community where parents and extended family live, or remarry.

The non-relocating parent usually opposes the child moving because it makes it very difficult to stay meaningfully involved with the child, or sustain a quality parent-child relationship. This is especially true when the moving parent wants to relocate with a very young child.

Relocation cases are very fact-driven, and call for a thorough investigation of the family’s context and circumstances. It is common to request guardians, psychological experts, social investigations, and parental responsibility evaluations in relocation cases.

Very often relocation cases raise issues of parental involvement with the child. Allegations are frequently made that one parent is trying to alienate the child from the other parent, and the parent who is feeling shut-out is alleging that the other parent is engaging in gate-closing behaviors to hinder involvement with the child.

Relocation cases are governed by §61.13001 of the Florida Statutes. It is a technical statute, with deadlines and requirements that are specifically stated and enforced. Both parents are charged with understanding its details, and are well served by a lot of preparation and sound legal advice.

For more information on the Family Court Services Unit of the 11th Judicial Circuit click here.

Read Every Post on your Ex’s Facebook Account!

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

Filing for divorce can mean a lot of your personal information becomes relevant at trial. That includes your Facebook posts. Florida courts will often let your Ex, or soon-to-be Ex, discover things from your accounts. What are the limits? Last week the Second District Court of Appeals tried to answer that question.

In a personal injury action, parents of a 3-year old sued the City of Cape Coral for damages after their son was hit by a truck in front of a construction site.

The defendants asked the mother to produce copies of postings her Facebook account, and the mother didn’t want to comply because the request information was very personal and not relevant to the lawsuit.

The defendant wanted copies of postings on her Facebook account which include the following:

– Psychological care obtained by the mom;

– All postings, statuses, photos, “likes” or videos related to the mom’s relationships with her children before and after the accident;

– Her relationships with other family members, boyfriends, husbands, and/or significant others;

– Her mental health, stress complaints, alcohol use or other substance use;

– Postings about any lawsuit filed after the accident.

The court noted that none of the requests pertained to the accident itself. Instead, the discovery relates to her past and present personal relationships mental health, use of alcohol and lawsuits.

Also, the court saw it as a fishing expedition, even the defendant’s attorney admitted as much:

“These are all things that we would like to look under the hood, so to speak, and figure out whether that’s even a theory worth exploring.”

Based on the then current posture of the case, the court concluded that the Facebook discovery requests had to be quashed. However, should the status of the case change, the requested information may be discoverable.

The lesson for lawyers is to tailor Facebook requests to require production of materials related as closely as can be to the claims and defenses in the case. For litigants, watch what you post on social media sites, they may be discoverable.

The Second District Court of Appeals opinion can be read here.

Equal Timesharing Presumed in Florida

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On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Friday, February 7, 2014.

Child custody is on everyone’s mind again as the Florida Legislature prepares for its March 2014 session. Last year, Governor Scott vetoed a bill with a presumption that parents always have equal timesharing with their children. This week I spoke at the FLAFCC regional workshop discussing the pros and cons of that presumption.

Fifty-fifty timesharing between parents may sound 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 raised at the workshop:

Pro

  • Each year, cases are tied up in court to establish a right to see children that parents would automatically have if they were married.
  • An equal time presumption promotes 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 timesharing 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.

The FLAFCC workshop was well attended. Family lawyers, family division judges, expert psychologists and interested people were able to break out into teams, listen to lectures and watch movies on the issue.

With the 2014 Legislative session starting next month, and bills already in committee, this is an interesting time to keep your eye on this issue.

Speaking about Equal Timesharing Presumptions this Friday

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On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Monday, February 3, 2014.

I will be speaking Friday, February 7, 2014, at the Florida Chapter of the AFCC Miami Regional Training held at the Lawson E. Thomas Family Courthouse. The subject is: “Equal Time-sharing: Is It Presumptively Best?” The AFCC is an organization of judges, lawyers, mental health professionals, and other experts who are improving the lives of children and families. The training is open to anyone interested in this important, interesting and timely topic.

Child custody, now known in Florida as time-sharing, can be an extremely painful part of any divorce or separation. Fathers think courts always side with Mothers. Conversely, Mothers worry Fathers only want to increase timesharing to lower their child support obligations. When parents can’t agree, the court has to decide.

What are the presumptions judges must rely on in creating a parenting plan and time-sharing schedule? Have you ever wondered what judges, lawyers, parenting plan evaluators, guardians ad litem and other related professionals thought of equal timesharing? If so, then this is an event for you.

Florida used to have a judicially created presumption against rotating custody. Then last year, legislators working on the alimony bill added a last-minute provision requiring courts to order equal timesharing. The alimony bill was ultimately vetoed by Governor Scott at the last minute. However, there are rumors that it may surface during this upcoming legislative session.

I hope to see lawyers, judges, clients, anyone interested in this topic, and readers of this blog there.

Are the ashes from a cremation marital property?

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On behalf of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Monday, January 27, 2014.

Dividing up of assets and liabilities in a divorce does not always mean money, houses, and credit cards. divorced can involve surprising things like breast augmentation, and very sad things like the remains of a stillborn fetus. And that’s exactly the asset a court in Albany, New York had to divide. Should the court’s decision be based on equitable distribution theory or on a Roe v. Wade woman’s right to choose?

In Jackson v. Jackson, the “property” was a stillborn fetus that was miscarried at 26 weeks. The parties separated a few months later. The wife testified during separation, the husband threatened to flush the ashes down a toilet. He testified he had a bad year, and made the comment in anger.

New York law provides that a fetal death is defined as death prior to the complete expulsion or extraction from its mother of a product of conception.

Do the ashes of a stillborn fetus conceived and miscarried during the marriage constitute marital or separate property? Like Florida, New York defines marital property as property acquired during the marriage.

Ashes are clearly marital property because there is no other alternative. However, the Wife owned the eggs from which the fetus developed before the marriage. The Husband impregnating her with sperm acquired after the marriage would clearly be a co-mingling.

Moreover, there is no way to characterize or to measure any enhanced value of a 26 week old fetus that was produced by the joining of the mother’s egg and the father’s sperm, regardless of when each contribution was made.

While property acquired during marriage is presumed to be marital, the public policy of New York gives the woman full control over the progress and outcome of her pregnancy without veto power by a husband or putative father – subject only to the restrictions of the Roe v. Wade trimester regime, upon which the Florida law is based.

Accordingly, the ashes of the stillborn birth are the Wife’s separate property.

This case raises questions that have never been answered in Florida. If a pregnancy terminates in a stillbirth, should the man and woman have equal rights to the remains under standard equitable distribution law? Or does a woman’s control of her own body lead to the right answer under a Roe v. Wade approach?

Thanks to Prof. Eugene Volokh at the Volokh Conspiracy for the pointer. The case of Jackson v. Jackson can be read here.

When is the best time to divorce?

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Wednesday, January 22, 2014.

Did you know that beginning of the year was the most popular time for getting married in Florida? It is also the most popular time to get divorce. In fact, January is nicknamed the “Divorce Month”. Researchers at FindLaw.com recently did an analysis of all American divorce filings and found that there is a spike in divorces in January, followed by a peak in late March. What’s happening at the beginning of the new year that causes people to both marry and divorce?

The Findlaw.com research analysis also showed internet search terms for “divorce” and phrases like “family law” and “child custody” jumped by 50% from December to January, and continued to swell through March. As the research shows:

For some people, it’s all about money. The end of the year is typically when bonuses are paid. Bonuses can be classified as marital property or factored into support payments. By filing before the bonus is received, you may avoid the marital characterization, and it may also help with tax filings.

Other people view the start of a new year as an “existential moment” in that people look at their lives, realize they go by too quickly and that their current version is not happy.

A study noted that of those who cheat on their spouses, 56% of men and 42% of women do so during the holiday season. These affairs may trigger post-New Year’s divorce filings.

Still for other couples the start of the new year marks the end of the ‘Season of Togetherness’, now it’s back to real life.

Some of the interesting statistics compiled by the state of Florida include:

  • The number of marriages decreased between 2011 and 2012
  • The marriage rate increased between 2010 and 2012.
  • March was the most popular month for marriage.
  • The most popular date of marriage in 2012 was 12/12/12
  • In 2012 the marriage rate in Florida was 1.7 times the dissolution rate.
  • The mean duration of marriage resulting in a 2012 dissolution was 10 years.

If you’re considering filing for divorce, here are 5 questions to think about:

1. Can your marriage be saved?

2. Do you have a plan?

3. Do you have a support network?

4. Are you safe?

5. Do you have a board certified expert divorce attorney?

Assisted Reproductive Technology Fraud

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On behalf of Ronald H. Kauffman, P.A. posted in Assisted Reproductive Technology on Friday, January 17, 2014.

There has been a big increase in divorce (ART). ART involves removing eggs from ovaries, combining them with sperm in a lab, and returning them to the woman or donating them to another. ART now accounts for 3 of every 100 children born in the U.S. ART offers opportunities for parenthood, but is also a ripe area for fraud.

The majority of ART usage involves couples undergoing in vitro fertilization – this is called 1st Party assisted reproduction. A growing number of procedures though use third-party collaborators who act as sperm donors, egg donors, and gestational carriers.

Most 3rd Party ART procedures are done without complication or incident. However, a recent article from the American Medical Association confirms what we already know, that we must be aware of and plan for potential misconduct.

Donor Misconduct

Donors may go through extensive screening, but, they may not be truthful when filling out their profile. Two large areas to be aware of are:

(1) Donor’s intention to claim parental rights over resulting child.

Parents intending to solicit donors shouldn’t presume donors will waive their parental rights. There have been a few cases where donors change their minds. Florida is a leading state in the enforceability of gestational surrogacy agreements.

(2) Donor health histories.

What happens when a donor reveals to a doctor a previously undisclosed health problem, such as a family history of cancer, depression, or prior meth addiction? Lies in a profile about health-related matters threaten the well-being of a potential child.

Surrogate Parenting Misconduct

Surrogate parenting allows a married infertile couple to contract with a woman to gestate a child, and then relinquish it after birth. We memorialize this in detailed gestational surrogacy agreements. Two big areas of concern include:

(1) The intended parents hide the fact that they are getting divorced when the agreement calls for the child being born into an intact marriage.

(2) A surrogate fails to comply with the contractual ban on coffee, chocolate, or alcohol use on a regular basis.

Infertile parents have an unprecedented opportunity to enjoy the rewards of parenting. Florida has set itself apart as a haven for ART, as our laws make the process less prone to legal problems. Some states and countries ban these practices altogether.

Florida is very advanced in this area of law, and is one of the few states that permits intended parents to establish the parental status to a child born through assisted reproduction without a paternity/adoption process.

However, Florida statutes make detailed provisions that must be followed for a contract for it to be enforceable. If you’re thinking of slapping together a “do it yourselfer” contract, think again, you could face legal risks

Shari’ah and Foreign Laws in a Florida Divorce

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On behalf of Ronald H. Kauffman, P.A. posted in Religious Divorces on Tuesday, January 14, 2014.

If you are in a divorce, and have religious divorce issues or foreign laws you must follow, can a Florida court uphold them? Last year the Florida Senate tried to restrict courts from applying foreign law to disputes relating to divorce. The ‘Anti-Shari’ah” bill died in the Senate by 1 vote. So can we now start divorcing under Sharia law? How about Jewish or Catholic rules?

As the Volokh Conspiracy recently posted, a New York court last week had to consider Saudi and Sharia law, and it turned out the world didn’t end:

In Standard Chartered Bank v. Ahmad Hamad AL Gosaibi and Bros. Co., 2014 WL 96219 (N.Y. trial ct. Jan. 10, 2014) the Defendants tried to quash a subpoena because compliance would expose them to civil and criminal penalties under Saudi Arabian law.

The plaintiffs countered that Saudi law and Shari’ah law actually obligated a Saudi debtor to fully disclose its assets to its creditors. So the disclosure was consistent with Saudi and Shari’ah law.

The New York court agreed with the plaintiff.

There are times when Sharia, and other religious or foreign laws, come up in a divorce. Sometimes contracts will stipulate a ‘choice of law’. For example, a prenuptial agreement may designate “New York” as the jurisdiction whose law governs disputes arising between the couple.

Other times, a foreign law or religious custom is highly probative, and relevant to a case, so a court will want to conduct a review of any foreign statutes, case law, or secondary sources, and will have to rely heavily on expert testimony. Consider the Standard Charter case above.

This can be good thing, and a restriction on using foreign, and especially Shari’ah law, in courts seems counterproductive. Our legal system has been around a while, and does a good job of dealing with foreign and religious issues.

Florida Statute Chapter 61 is not being replaced by the Bible, Torah or Quran anytime soon. But as the New York court shows, sometimes foreign laws and customs can shed light on a Florida court’s ability to resolve questions of fact and law.

Right of First Refusal in Custody Cases

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, January 10, 2014.

Sometimes a parent has to miss out on time with the children. It’s not that mom or dad is neglectful, just that life sometimes intervenes: the boss wants mom to work late, or dad has an exam. Are you required to ask your Ex-spouse to care for the kids first, or can you get a babysitter or family member to fill in? The Right of First Refusal answers that question.

It is never easy to divide timesharing in a child child custody dispute, especially when you can’t be there for your own child. Do you have to allow your Ex first dibs?

The right of first refusal requires that one parent first offer the other parent the opportunity to look after the children before hiring a babysitter or asking another person to care for the children.

The right of first refusal can come up when you’ve planned to be out of town, or in last-minute situations. The other parent may be able to take the kids for that weekend or night, and you can make up the difference later.

If the other parent can’t pick up the slack, then a babysitter, family member or even a friend can fill in. The right of first refusal can apply to time periods of an hour, to days depending on your agreement.

The right of first refusal maximizes a parent’s time with their kids. I’ve also found that when there is a right of first refusal, the parents are more likely to communicate with each other, and hopefully eliminate some of the anger between parents.

Illinois is about to enact a law requiring the right of first refusal. Effective January 14, 2014, the new Illinois statute 602.3 will require that:

If it is in the best interest of the child, both parties shall have the right of first refusal to care for the minor children if the absence of either party is necessary for a period of 4 hours or longer. That parent shall first offer the other parent an opportunity for additional time with the children before making other arrangements for the temporary care of the children.

The new statute contains provisions concerning distance, transportation, and time constraints. It also requires a parent to notify the other parent of the duration of the parenting time or temporary care of the children by other persons. And contains requirements regarding the offering and acceptance of additional parenting time.

Florida does not have a statute requiring the right of first refusal. Reading through the Illinois statute, I wonder whether this will become an issue for Florida’s legislature will pick up.

Timesharing is based primarily on the “best interests” of a child. Should the right of first refusal be regarded as in the best interest of absent a showing of impracticability or harm to a child?

The statute can be read here.