When Men Get Pregnant Who Gets Custody?

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Tuesday, January 22, 2013.

One thing about child custody cases, they never get boring. Take the new case out of Phoenix that the Arizona Republic is reporting on. An Arizona judge is deciding whether he has jurisdiction to grant a divorce to Mr. Thomas Beatie. Tom’s an ordinary man except for one thing: he is also the birthmother of the married couple’s child. That’s right, the biological dad is also the biological mother.

Tom was born a woman named Tracy in Hawaii. Apparently, Tracy was pretty good looking too, as she participated in beauty pageants and worked as a model. Tracy began undergoing testosterone therapy, and after psychological testing, was “determined to have male gender identification.” The first of the surgeries was performed in 2002. After that Tracy’s birth certificate and driver’s license changed, and six months later, Tracy became Tom.

Tom married his girlfriend Nancy, and because Nancy couldn’t have children, Tom had the child. When news leaked out, Tom became an instant hint as “The Pregnant Man,” appearing on Oprah, Barbara Walters, Letterman etc. He also wrote a book, and is a motivational speaker for transgender rights.

This term, the United States Supreme Court will hear two cases involving same-sex marriage, although those rulings may come too late for Tom’s case. The Supreme Court will hear a challenge to the federal Defense of Marriage Act (aka DOMA), under which the federal government is forbidden to acknowledge same-sex marriages even if they are legal in the couple’s state of residence. Another challenge centers on California law, which previously granted same-sex marriages, but was later amended to revoke those rights.

Transgender cases are not very common, but they are turning up more frequently, and pose challenging issues. We shall see whether in Arizona the best interest of the child test impacts consideration of sexual identity.

Shared Custody Agreements and Religion

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On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Friday, January 18, 2013.

Joint child custody in parenting plans and agreements help resolve a lot of the child timesharing issues after the divorce. But sometimes the provisions conflict with each other. The Volokh Conspiracy recently reported on the interesting New York case of Katz v. Katz. Katz involves two ultra-orthodox Jewish parents. The parties separated religiously, but never had a court approve their agreement. The agreement said:

(7) JOYOUS OCCASIONS. The Child will participate in every joyous occasion of the relatives who are disqualified as witnesses, such as engagement, wedding . . .

(8) EDUCATION. The 2 parties are obligating themselves to raise The Child to appropriately respect the 2 parents. . . No party will take The Child to any place which is incompatible with the aforementioned style and manner, not even temporarily . . .

The mother wanted to travel to Israel with the child for her brother’s wedding. The father objected, citing his religious beliefs that travel to Israel violated the religious views of his Jewish sect. He argued travel to Israel would undermine the child’s religious beliefs, confuse the child and “would be against the child’s best interests because he is too young to understand the differences that he will be exposed to in Israel . . .”

The mother noted that the father himself has already traveled to Israel – in fact he acknowledged that he traveled to Israel three times, and as recently as within the last 12 months, but that each time he traveled to Israel it was in his adult life, not as a child.

Strangely, the judge ruled:

At this juncture, it is not in this child’s best interest to require him to travel to Israel for a celebration; the emotional risk to him outweighs any benefit that conceivably would be derived from the experience. Furthermore, the mother did not demonstrate any serious adverse affects that would be contrary to the child’s best interests if he were to stay.

As a side note, religion and divorce often get thrown together, such as in the Muslim Mehr agreements I blogged about earlier. The establishment clause tries to separate government and religion, but Katz shows why it can’t be avoided sometimes. However, the Establishment Clause is usually not violated when neutral principles of law, such as the best interest of the child test, can resolve a dispute without relying on religious doctrines.

Sperm Donors Could Be Forced to Pay Child Support

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On behalf of Ronald H. Kauffman, P.A. posted in Child Support on Thursday, January 10, 2013.

child custody can be heavily litigated despite guidelines, especially for sperm donors who never intended to be parents.

Florida protects surrogacy, and has comprehensive laws protecting the baby, intended parents, donors and surrogates. For example, Florida allows a commissioning couple to enter gestational surrogacy contracts in which a commissioning couple reimburses a surrogate for reasonable expenses, and on the child’s birth, the surrogate relinquishes her parental rights. Gestational surrogacy contracts are reviewed by courts to confirm that they are in accordance with Florida law, and for a birth certificate to be issued.

However, serious problems can arise if this statute is not followed correctly. ABC News reports on Topeka, Kansas resident and sperm donor, William Marotta, who is currently facing a child support petition by the Kansas Department of Children and Families:

The state of Kansas is seeking child support from a man who says he signed away all parental rights when he donated sperm to a lesbian couple.

. . .

Marotta, 46, met Angela Bauer and Jennifer Schreiner in 2009 when he responded to a Craigslist ad from a lesbian couple in Topeka, Kan., who were offering $50 per sperm donation, according to legal documents.

. . .

All three signed a sperm donor contract that stated that he would have no paternal rights and would be in no way responsible for any child that resulted from the donation.

. . .

“Three years forward, the couple sought state assistance for the child and the Kansas Department of Children and Families sought out of them the name of the father and said they would not provide assistance unless they provide the name,” Swinnen said.

. . .

The filing said that the state had spent $189 on the baby from July 2012 to September 2012 and nearly $6,000 in medical assistance, which Marotta had a duty to pay.

. . .

“The state does not recognize the contract. We’ll see if the courts in Kansas do,” Swinnen said. “We have filed a motion to dismiss. We hope to prevail, but this is the first round.”

A hearing on Marotta’s motion to dismiss the state’s petition is supposed to be heard this month.

Can Divorcing Save You Money in Taxes?

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Sunday, January 6, 2013.

There are many good reasons people have for getting divorce. But should you get divorced for the money saved on tax filing status? The Eleventh Hour agreement to avoid the fiscal cliff known as the American Taxpayer Relief Act of 2012, was signed into law this week and may have created a new marriage tax. The Act may make divorce a very profitable decision for couples seeking to reduce their tax exposure, whether they want to divorce or not.

As the online news magazine The Fiscal Times reports:

Meet the new George and Martha – two investment bankers who fell in love over a bottle of Barolo while students at Wharton. They were made for each other: they had the looks, the lifestyle, and the resumes that Wall Street firms bid for . . . Before long they were each making about $400,000 a year. And, thanks to the Bush-era tax cuts, they were able to keep a lot of that money and live the high life.

…

The new law raises taxes on couples making more than $450,000 and individuals making more than $400,000. When their accountant told them they may have to limit their deductions because of their joint incomes as well, they asked her to run the numbers and come up with an alternative. As it turns out, George and Martha would save over $27,000 a year if they divorced. And so they did. But they’re still together, in some ways closer than ever.

Think about that for a second. If a couple could save $27,000 annually on their taxes, they could take a European cruise, Colorado ski vacation, put a little cash away towards college expenses, and even have some mad money left over – every year. How, just by divorcing and staying together in a long term relationship!

Gay Divorce is Here…or uhm There!

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On behalf of Ronald H. Kauffman, P.A. posted in Domestic Partnerships on Tuesday, January 1, 2013.

Marriage in Florida is limited to a man and a woman. divorce too. This means gay couples cannot legally marry in Florida. Their unions are not recognized either. What about gay divorces? While the issue of gay marriage appeared in the presidential elections, and is a hot topic in other states, there has not been a lot of news about the issue of gay divorce anywhere.

However, a Family Court in Ramat Gan, Israel corrects this omission. The Family Court last week approved a divorce between Professor Uzi Even and Dr. Amit Kama, two gay men. This is not the only first for Mr. Even, he is also the first openly gay member of Israel’s parliament, the Knesset.

The decision is an important one, because Israeli law only recognizes marriages performed under the auspices of religious courts. In Israel, gay couples are forbidden to marry. Instead, gay couples marry in civil ceremonies in other countries, or simply don’t marry. Unlike Florida however, their marriages are recognized in Israel when they return from abroad.

Israel’s Interior Ministry can try to veto the Family Court decision. The ministry would have to go to court in order to do so. A few years ago, the Israeli Supreme Court forced the Interior Ministry to recognize same sex marriages performed abroad, and ordered the government to list a gay couple wed in Canada as married. Same sex marriages are performed in Israel, but they have no formal legal status. As the Israeli paper Haaretz reports:

“The irony is that while this is the beginning of a civil revolution, it’s based on divorce rather than marriage,” newly divorced Kama, a senior lecturer in communications in the Emek Yizrael College, told Reuters. He and Even, both Israelis, married in Toronto in 2004, not long after Canada legalized same sex marriage. They separated last year, Kama said. It took months to finalize a divorce as they could not meet Canada’s residency requirements to have their marriage dissolved there. At the same time in Israel, rabbinical courts in charge of overseeing such proceedings threw out the case, Kama said.

By winning a ruling from a civil court, Kama and Even may have also set a precedent for Israeli heterosexual couples, who until now have had to have rabbis steeped in ancient ritual handle their divorces, legal experts say.

“This is the first time in Israeli history a couple of Jews are obtaining a divorce issued by an authority other than a rabbinical court, and I think there is significant potential here for straight couples” to do so as well, said Zvi Triger, deputy dean of the Haim Striks law school near Tel Aviv.

Timesharing in the Digital Age: The Good and Bad

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On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Thursday, December 20, 2012.

Child custody timesharing and visitation problems can be very stressful . . . even when parents get along well. No matter how well ex-spouses and parents cooperate with each other, there’s a good chance of angry phone calls, tearful exchanges, and even knock down drag out shouting matches. That’s because the strong emotions are still there. Often these arguments are played out in front of the children.

Technology can be a great way to shield children from parents fighting, ease the pressure of face-to-face communication between parents, and also to have more meaningful timesharing when your child is with the other parent. After all, we live in a world where we have video telephones, and wouldn’t you rather see your children when they are away rather than just hear them?

The New York Times recently reported on the growing trend of relying on text, email, Skype, Facetime and other online and digital tools to help facilitate timesharing. These digital means of communicating have replaced the face-to-face confrontations of the past, and have helped – I think – to avoid many of the heated exchanges in front of the children which typically take place during divorces and even afterwards.

MOST divorced couples would probably prefer not to see each other. Ever again. But when you share custody of your children, you have to assume a certain amount of face-to-face time amid the endless back-and-forthing.

Think of the clashing summer vacation plans, the who-goes-to-Lucy’s-birthday-party, the “Max forgot his homework again” at Dad’s. And those devilish contretemps that can arise if Mom, for example, decides to keep her house kosher while Dad serves the children pork chops. Or if her new boyfriend is suddenly sleeping over on “her” nights to host the children.

But just as new technologies have helped to facilitate communication between ex-spouses and divorcing parents, the technology can be abused as well. As the New York Post reports, technology can also be a means for snooping on the other parent. Consider the one case up in New York:

Fordham law Professor Annemarie McAvoy was ordered to take away the boy’s iPhone because she was using the Apple device to pry into the father’s home – spending long stretches talking with their son via the smartphone’s FaceTime video-chat feature. The judge noted:

“I believe the mother has entered the father’s home and has taken up residence to a certain extent,” Brooklyn Supreme Court Justice Jeffrey Sunshine said.

Technology can be a double-edged sword. Not enough, and parents are forced into facing each other. And, face-to-face confrontations can be stressful and lead to arguments. Too much technology, and parents can use electronic devices to spy on the other parent or the child or worse.

A Custody Case Goes to the U.S. Supreme Court

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, December 14, 2012.

Many international child child custody cases are governed by the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. The Hague Convention is a treaty signed by the United States and 88 other members. It protects children from abduction across international lines by providing a procedure to quickly return them. But after the child has been returned, how does a parent appeal if they think the trial court got it wrong?

Most people don’t know this, but it is extremely rare to have your case heard by the United States Supreme Court. In family law cases, it is even rarer. However, the U.S. Supreme Court agreed to hear a case this term: the appeal of U.S. Army Sergeant Jeff Chafin, whose wife, Lynn, left the U.S. for Scotland with the couple’s daughter after a U.S. district court allowed it.

In Chafin, the question is whether the case is moot after the child has been returned to their country of habitual residence. Mrs. Chafin returned to Scotland with the child after a federal trial judge allowed it. The trial court determined Scotland was the child’s habitual residence. Sgt. Chafin appealed the order, claiming the U.S. was the habitual residence. The 11th Circuit Court of Appeals in Atlanta dismissed his appeal as moot. The 11th Circuit happens to be the federal appeals court governing Florida.

But appellate courts are split on whether to keep jurisdiction or dismiss them as moot. For example, the 4th Circuit in Virginia has ruled that removal of the child did not make the case moot. During oral argument before the U.S. Supreme Court, Chief Justice John Roberts Jr. I think correctly observed:

It seems to me, and I may be taking the opposite position from one of my colleagues, but the — the best thing is to hold things up briefly, so that the child doesn’t go overseas and then have to be brought back, particularly if you have situations where there can be an expeditious appeal.

Avoiding Holiday Visitation Emergencies

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On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Sunday, December 9, 2012.

For people going through child custody, or who are very recently divorced, the holidays are not always happy times. In my experience, the holiday season is a stressful one, and this year is shaping up to be no different than other years. The ringing you hear in family law firms is not sleigh bells, but telephone calls from upset clients fighting over holiday visits, winter vacation plans and gift giving. As the Washington Times reported recently:

Believe it or not, most attorneys would rather enjoy the holidays with our own families than rush into court to file emergency legal documents for stressed out clients during the season. Due to the recent court cutbacks, emergency filings are an even greater strain on everyone. This is the time to think ahead, anticipate and solve problems so you can enjoy your holiday season with minimum stress for you and your children.

Here are a few tips for parents to lower or prevent your divorce ruining your holidays or bank account:

  • Look at the timesharing schedule in your agreement or final judgment. Become familiar with specific holidays, dates and the times the kids are supposed to be with you, or the other parent.
  • Send a nicely worded confirmation email of the holiday schedule to the other parent to avoid disagreements early on.
  • Be flexible. Relatives can make special visits during the holidays, and it might be the only time of year seeing the children is possible. Fostering relationships with extended family is considered in the children’s best interest.
  • If your divorce is ongoing, spending the holidays with your soon to be ex and his or her family is way too much stress right now. After the wounds heal, think about taking the high road and sharing a holiday instead of splitting or alternating one.

A little pre-planning and communication can save you a lot of emotional and financial expense. This is a special time of the year for children. The weather has cooled, kids are on vacation, and work may have slowed for you. Try to make it the best time of year.

The End of the Starter Marriage

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, December 3, 2012.

A “starter marriage” is a marriage that ended in divorce before age 30, had no children and few assets or debts. Hollywood (California) tends to have a lot of starter marriages. The divorce rate leveled off in the 1990s – from about 50% of new marriages to about 43% currently. However, USA Today reports that a 2001 survey by the Centers for Disease Control and Prevention says 20% of divorces in first marriages now occur within five years.

Some of the risk factors for having a starter marriage:

The divorces of parents.” Parents didn’t serve as role models for staying together.

Lack of guidance from parents. Aware that they themselves had divorced, parents backed off talking about what makes marriage work.

Immaturity. Rushing to the altar.

Pressure to marry We may have a “marriage culture” that promotes “matrimania.”

Fortunately, the divorce of a Starter Marriage is much simpler and less expensive. Florida has a procedure for a simplified dissolution of marriage which people in starter marriages may be able to use. This simplified procedure may be used when:

The marriage cannot be saved;

There are no minor or dependent children, and the wife is not pregnant;

You have agreed to divide the things that you both own and owe;

No one is seeking alimony;

You have filed, or waived filing, financial affidavits;

You are willing to give up your right to trial and appeal;

You and your spouse are willing to jointly sign a divorce petition;

You and your spouse are both willing to go to the final divorce hearing;

If you do not meet these criteria, you have to file a regular petition for divorce. If you have any doubts or questions, ask a Florida board certified specialist in family and marital law.

Is Your Marriage Valid If You Phoned-in Your Vows?

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On behalf of Ronald H. Kauffman, P.A. posted in Marriage on Wednesday, November 28, 2012.

In Florida, it is pretty easy to get married and divorce. You have to apply for a marriage license, which can be issued by any county court judge or the clerk of court, and then the marriage needs to be solemnized by any ordained clergy, judge, clerk of court, or notary public.

Of course, there are a few impediments to marriage. Impediments to marriage mean the marriage won’t be recognized in Florida, which can turn a lawsuit for a divorce into an annulment. The difference can be important if alimony is in dispute. Who wants to learn they aren’t entitled to alimony because their marriage was invalid?

The impediments to marriage fall into two major categories: the lack of consent or incapacity to consent. For example, the age of consent here is 18. So, with a few exceptions, minors generally can’t marry in Florida. Then there is the Bachelor Party wedding; a Las Vegas style marriage which gets annulled because someone was too drunk to consent.

However, if you are a busy bride on the go, or a groom out of town on business, can you appear for your wedding by phone? Can you email your vows to the priest or rabbi? Is the marriage valid? Florida law is unclear, but the Washington Post reported yesterday on a Maryland case in which validity of a marriage was called into question because the husband was in the Congo during his wedding.

Noel Tshiani wasn’t at his wedding – he listened by phone in another country to the ceremony in the Democratic Republic of Congo, according to court records. After about 15 years, the Mrs. Tshiani filed for divorce. Her husband told the divorce judge that he didn’t know about the marriage. That was despite renewing their vows in church, obtaining a green card for his wife and having filed joint tax returns, according to last week’s ruling from the Court of Special Appeals. Soon, he’ll be just as divorced and responsible for alimony and child support, a Maryland court has ruled.

The court noted that the law doesn’t bar Maryland “from recognizing a ceremony where one party participates by proxy – or in the manner that occurred here – and the ceremony is valid in another jurisdiction.”