Category: Announcement

Punishment and Domestic Violence

Posted by Ron Kauffman on

When does child discipline cross the line between punishment and domestic violence? It is a frequent child custody issue which can impact parental rights and timesharing. After a Colorado ski vacation, two parents found out how Florida courts look at punishing your teenager for marijuana, theft, and ingratitude.

Punishment Domestic Violence

Rocky Mountain High

The two Florida parents divorced in 2018. About four years after their divorce, a domestic violence injunction was filed by the mother against the father on behalf of their fourteen-year-old daughter. The Mother alleged in her petition that the father had punched the daughter; grabbed her by the hair, and then sat on his daughter. Worse, while sitting on top of her, the father continued to punch and slap his daughter.

At the trial, the Father testified that he and his daughter had just returned from a Colorado ski vacation during the winter holidays. When they returned, his daughter had given him a pair of socks as a gift. Either very suspicious, or just unhappy with his gift, the father suspected the gift socks were stolen.

The father searched the daughter’s room to see if there were other stolen items. In her backpack from the ski trip to Colorado, the father found marijuana, a pipe, and a vape pen. Colorado, remember, became the first state in the U.S. to sell legal recreational marijuana for adult use. The father announced he was going to punish the daughter for stealing, lying, and possessing marijuana and a vape pen by taking away her most cherished item, her phone.

The daughter refused to give the father her phone, obviously, and they ended up tussling over it. At some point, the daughter snapped the father’s finger back and broke it.

The father refused to return her phone, and the daughter threw a metal thermos and an orange juice bottle. Father denied punching her, pulling her hair, or sitting on her. The daughter told the neighbor she had gotten into an argument with her father but did not need the neighbor to call the police.

The daughter then went back to the father’s house. The neighbor testified the daughter did not seem fearful to return to her father’s house. She then came back to the neighbor’s house and asked for a ride to the mother’s house. During the car ride, the neighbor did not see any physical injuries on the daughter

The mother testified she saw a bruise on the daughter’s back, leg, and arm. The mother took pictures of the bruises. A Child Protection Investigator testified there were “no indicators of mental or physical injury because the parties were deemed as mutual combatants.” The CPI observed “a little black and blue” on the daughter’s shoulder and arm but no bruising or marks. The guardian ad litem for the child also testified, and said it was a mutual combatant situation, and “absolutely 100 percent inappropriate.”

The trial court found there was competent substantial evidence that the daughter is in fear, and granted the injunction for six months. Father appealed.

Punishment in Florida

I’ve written about spanking and custody before. In Florida, parents have a right to discipline their child in a reasonable manner. Florida has strong laws for the protection against domestic violence. Domestic violence includes any assault, battery or any other offense resulting in physical injury of a family member by another family member.

However, parents have to discipline their children, and as the good book says:

“Whoever spares the rod hates their children, but the one who loves their children is careful to discipline them.”

A parent’s right to administer reasonable corporal punishment to discipline a child is not a crime when it does not result in harm to the child. Harm, by the way, does not mean just bruises or welts. Harm also means that the discipline is likely to result in physical injury, mental injury, or emotional injury. Even if you don’t physically harm a child, your actions could be criminal.

Florida’s parental privilege to use corporal discipline does not give absolute immunity either. Your run-of-the-mill spanking may be protected from charges of child abuse, but sitting on your child, punching her on the floor and pulling her hair is not. While there are some limited privileges for discipline, there are major risks to your custody case, your domestic violence case, and most importantly, to your children.

The High Court

The argument by the father on appeal was that the altercation between he and his cellphone addicted teenage daughter was nothing more than the father exercising his right to discipline his child. He argued his actions were appropriate physical discipline, rather than an assault, battery, aggravated assault, or aggravated battery.

There was also no history of domestic violence by the father toward the daughter or evidence that would give her a reason to believe she was about to be subjected to domestic violence. The injunction was based solely on the one post-Colorado ski trip incident between a father and his teenage daughter in which he physically wrenched the cellphone from her.

The 4th DCA reversed. The father’s physical and verbal actions in taking away the daughter’s cell phone was a form of physical discipline, not corporal punishment. The appellate court ruled that even if it was punishment, it was not excessive corporal punishment because the daughter refused to surrender her phone, and there was no evidence of disfigurement or significant bruising on the child.

The opinion is available here.

Fighting Paternity and UCCJEA Jurisdiction

Posted by Ron Kauffman on

A husband and wife, who marry in Brazil, agree the husband does not have paternity and is not the legal father of their daughter. But that does not stop them from fighting UCCJEA jurisdiction in Florida. What happens when the court disagrees with them that he’s not the Father? A married couple just found out the results in an interesting international child custody case.

UCCJEA Paternity

The Girl from Ipanema

The Wife is a Brazilian citizen living in Rio de Janeiro not far from the famous beach. The Husband is a U.S. citizen, a commercial airline pilot, and resides in Florida. The parties met online in 2014. They later were married in Rio de Janeiro, Brazil in 2016.

The wife had a daughter born in Brazil in 2015, the year before they got married. Interestingly, while the wife acknowledged she was the biological mother, the parties stipulated that the husband was not the biological father.

However, the Husband added his last name to the child’s name on the child’s birth certificate in Brazil. Later, they went to the U.S. Consulate in Brazil, and had a Consular Report of Birth Abroad Certificate issued for the child using his citizenship and his last name for the child.

Next, they had issued a U.S. passport and a Brazilian passport for the child using his last name as the father as well. It was later found that the husband held himself out as the father of his daughter during the marriage. The parties owned one marital asset, a home in Naples, Florida.

In 2021, the Husband filed a petition for divorce in Florida seeking only the following relief: (1) a dissolution of marriage and (2) and equitable distribution of the home in Naples. The Wife filed an answer denying allegations but did not raise the issue of the child, custody, or child support.

During the case, the parties entered a partial marital settlement agreement resolving all of the financial issues, including equitable distribution of the home. However, nothing was agreed, or mentioned, about their daughter.

Instead, the parties filed a stipulation that the husband was not the father of the child. Additionally, the husband filed an objection before trial that the court lacked jurisdiction to hear child support and custody under the UCCJEA because Florida was not the home state of the child.

The family judge entered a amended final judgment finding that the husband was the legal father of the child, and reserved jurisdiction on child support.

The Husband filed a motion for reconsideration arguing that under the UCCJEA, a court in Florida has jurisdiction to make an initial child custody determination only if Florida is the home state of the child or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent continues to live in Florida. The court denied the motion for reconsideration and the husband appealed.

Florida UCCJEA

I have written about international child custody issues before. The UCCJEA is a uniform act drafted to avoid jurisdictional competition and conflict with other state courts in child custody matters; promote cooperation with other courts; ensure that a custody decree is rendered in the state which enjoys the superior position to decide what is in the best interest of the child; deter controversies and avoid re-litigation of custody issues; facilitate enforcement of custody decrees; and promote uniformity of the laws governing custody issues.

An important aspect of the UCCJEA is that it only covers child custody determinations. Under the UCCJEA, a “child custody determination” means a judgment, decree, or other order of a court providing for the legal custody, physical custody, residential care, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The definition does not include an order relating to child support or other monetary obligation of an individual.

The UCCJEA deals with “child custody proceedings,” which are defined as proceedings in which legal custody, physical custody, residential care, or visitation with respect to a child is an issue. Child Custody proceedings do not include proceedings involving juvenile delinquency, contractual emancipation, or enforcement.

Although not part of the UCCJEA, under Florida law, the husband could have also faced additional challenges. For instance, if a mother of any child born out of wedlock and the reputed father intermarry, the child is deemed and held to be the child of the husband and wife, as though born within wedlock.

Boa Sorte

On appeal, the third district affirmed that the husband was the legal father of their daughter. The court noted that the UCCJEA was a jurisdictional act which controls custody disputes and only applies where custody is at issue.

The term custody includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear.

But, a child custody determination does not include an order relating to child support or other monetary obligation of an individual. In this case, the appellate court found that the parties did not dispute custody of the minor child. As a result, the trial court had subject matter jurisdiction over the action.

The opinion is here.

De Facto Parents and Child Custody

Posted by Ron Kauffman on

Can someone ask a court for custody of a child if they are not the parent or legal guardian but act as the de facto parent? The Georgia Supreme Court just looked at that child custody question in weighing the constitutionality of Georgia’s Equitable Caregiver Act.

De Facto Parent

Georgia On My Mind

These days, a parent-child relationship is becoming hard to define. Cultural norms have changed, and increasingly we have embraced nontraditional families.

Imagine you and your child move in with your parents or significant other, and you rely on them to care for your child while you work. After several years, you get into a fight about parenting, move out, and limit their time with your child. Are your parents or Ex considered equal legal parents? Can a judge to decide how much visitation grandparents or your former significant other has with your child?

Roughly 38 states now recognize the concept of a “de facto parent,” where legal rights are rooted in the person’s relationship to the child as opposed to blood. And in 2019, Georgia Republican Gov. Brian Kemp signed the “Equitable Caregiver Act,” which gives people the right to ask for custody if they can prove they have a “permanent, unequivocal, committed and responsible parental role” for the child.

Abby Boone believed she met that description. She helped raise a young girl for the first four years of the child’s life along with her partner, Michelle Dias. The girl is a cousin of Dias, who legally adopted her in 2011. Boone was not part of that adoption, but the court noted the girl’s middle name is listed as “Boone” on the child’s new birth certificate.

The child, M.D., was born in October 2010. Michelle Dias, who adopted M.D. in March 2011, was in a romantic relationship with Abby Boone, who helped care for M.D. from six weeks old but was not a party to the adoption.

After their breakup, Boone remained involved in M.D.’s life until 2018, when Dias cut off contact. In August 2019, Boone sought “equitable caregiver” status under Georgia’s newly enacted law, which allows a non-parent to be adjudicated as a caregiver with parental rights.

The trial court found that Boone met the statutory requirements and granted her joint legal custody and visitation rights in January 2024. Dias appealed, arguing the statute was unconstitutional because it infringed on a parent’s fundamental right to the custody and control of their child.

Florida De Facto Parent

I’ve written about parental responsibility in Florida before. In Florida, “custody” is a concept we have done away with. Florida uses the parental responsibility concept. Generally, shared parental responsibility is a relationship ordered by a court in which both parents retain their full parental rights and responsibilities.

Under shared parental responsibility, parents are required to confer with each other and jointly make major decisions affecting the welfare of their child. In Florida, shared parental responsibility is the preferred relationship between parents when a marriage or a relationship ends. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

A grandparent and a stepparent do not acquire all of the rights or assume all of the obligations of a child’s natural parent in Florida. A grandparent may be awarded some visitation rights in very limited situations, such as when the child’s parents are deceased, missing, or in a permanent vegetative state.

Florida does not have a de facto or psychological parent law like Georgia’s. Generally, timesharing and visitation rights are statutory, and the court has no inherent authority to award visitation between a child and one who is neither a parent, grandparent, nor great-grandparent. Our supreme court, citing the fundamental and constitutional right of privacy, has unequivocally reaffirmed adoptive or biological parents’ right to make decisions about their children’s welfare without interference by third parties, and the state cannot intervene into a parent’s fundamental or constitutionally protected right of privacy, either via the judicial system or legislation, absent a showing of demonstrable harm to the child.

Just Peachy

The Georgia Supreme Court declined to resolve the constitutional challenges, instead it interpreted the statute to avoid retroactive application. The Supreme Court held the statute lacked a clear legislative intent for retroactive application. Accordingly, to apply it to a pre-2019 relationship – Dias was fostering Boone’s relationship with M.D. before the statute existed – would impermissibly ascribe new legal consequences to past actions, violating due process principles.

As a result of the refusal to apply the statute retroactively, the trial court’s order was reversed because the statute could not constitutionally apply to conduct predating its enactment, and the Court vacated Boone’s equitable caregiver status and custody rights.

The Georgia Supreme Court opinion is here.

Three Men Family Law Case Update 2024

Posted by Ron Kauffman on

Not even a hurricane could stop the popular Three Men and a Family Law Case Update webinar. The La Niña, high sea surface temperatures, and new appellate opinions have made 2024 an active season in Florida  family law. So, for anyone interested in discussing the latest developments in Florida family law, and hasn’t already registered, it is time again to register for the Three Men and a Family Law Case Update 2024 on Friday, November 1, 2024 starting at 12:00 PM to 1:30 PM

Case Update

Join me and AAML fellows/board certified lawyers, Reuben Doupé and Cash A. Eaton, for an active discussion on some of the major Florida marital and family law changes that have changed the family law landscape in 2024.

The course is an online webinar, and we will be reviewing many of the most important recent appellate opinions within Florida Marital and Family Law. Reuben, Cash and I will cover a wide range of topics from Florida’s newest family law cases.

Sponsored by the Florida Bar Family Law Section, attendees will be eligible for 1.5 CLE credits.

Registration is still open so register here.

New Partner Announcement

Posted by Ron Kauffman on

Ronald H. Kauffman, P.A., a  leading marital and family law firm, is pleased to announce that Raquel Lacayo-Valle has become a partner of the firm.

RLV

As a partner, Ms. Lacayo-Valle will continue to focus her practice exclusively in the area of marital and family law. Her practice includes mediations, collaborative family law, trials, and appeals of dissolutions of marriage and family law cases. She focuses on all aspects of marital and family law, including complex divorce and international and interstate divorces, parenting and child issues, drafting and litigating marital agreements, post-judgment modifications of orders and frequently is asked to serve as a Guardian ad Litem for children. Ms. Lacayo-Valle also speaks frequently to community groups about the divorce process and other family law issues.

Ms. Lacayo-Valle earned her B.A. from the University of California, Berkley and her J.D. from University of California College of the Law, San Francisco before moving to Miami. She is actively involved in several community and professional organizations including St. John Neumann Catholic Church – Religious Education Program and Homeless Ministry, a Florida Bar Grievance Committee, the First Family Law American Inns of Court, the Collaborative Family Law Institute, and the Legal Aid Society’s Put Something Back program. Ms. Lacayo-Valle is also an avid marathon runner.

Ms. Lacayo-Valle is admitted to practice law in Florida and California.