Category: Child Custody

Florida’s New Safe Exchange Locations Law

Posted by Ron Kauffman on

A new law amending Florida parenting plans this month deals with the concept of a ‘safe exchange location’. Every child custody and timesharing case must have a court approved parenting plan in which parents share decision-making and physical custody of their children. In some timesharing cases, the places parents do their pickups and drop-offs can be a problem. Family lawyers in Florida will be interested in the new changes to parenting plans.

Safe Exchange

Cassie Carli Law

Florida parenting plans not only govern the relationship between parents relating to decision making, but must contain a timesharing schedule for the parents and the children. Ideally, a parenting plan should attempt to address all issues concerning the minor child like the child’s education, health care, and physical, social, and emotional well-being.

But a frequent problem has been the place where exchanges of the child for timesharing takes place. Timesharing exchanges commonly occur in either parent’s homes, or well-lit parking lots of popular establishments, rest stops at the midway point between both parents, the child’s school, or a common landmark such as a specific coffee shop. There is really no limit to the location parents can agree to for the timesharing exchange.

However, when the parents have a contentious relationship, it is generally preferable that the exchange be made in a public, well-lit location with security cameras and high foot traffic by other people. Usually, parents are able to agree on a change in exchange location and deviate from the location prescribed in the parenting plan as needed.

Some sheriff and police departments allow parents to use their lobbies as an exchange location, but there is no standard process or procedure for all locations and many disapproved of the process.

The new law is often called  the “Cassie Carli law.’ The law was named for Cassie Carli, who was a 37-year-old mother from Navarre, Florida. Cassie went missing after a custody exchange with her ex-boyfriend. Days after she went missing, Cassie was found buried in Alabama.

Under the new law effective this month, every sheriff in Florida must:

  • designate at least one parking lot as a neutral safe exchange location for use by parents of a common child and
  • identify minimum requirements that each designated safe exchange location must satisfy, including a purple light or signage in the parking lot and a camera surveillance system.

Starting this July, family courts in Florida can order that exchanges of a child be conducted at a neutral safe exchange location if there is a risk or an imminent threat of harm to one of the parents or the child during the exchange.

The bill amends the domestic violence statute to allow the petitioner to request that the court require timesharing exchanges to be conducted at a safe exchange location, and to authorize or require the court to order the use of a neutral exchange location in an ex parte order for a temporary injunction under certain circumstances.

The bill also amends the law to provide that a parenting plan must generally designate authorized locations for the exchange of the child and may be required to take place at a neutral safe exchange location if there is a risk or an imminent threat of harm to one of the parents or the child during the exchange; the court finds such a requirement necessary to ensure the safety of a parent or the child; and such a requirement is in the best interest of the child.

Florida’s new designated safe exchange locations are not always staffed but are considered a secure environment because of the video surveillance and proximity to law enforcement. Police suggest that if anything occurs during the exchange to call 911 immediately.

The bill became effective July 1, 2024.

Your OnlyFans Account Could Cost You Child Custody

Posted by Ron Kauffman on

Family lawyers are concerned with our clients’ online activities. That’s because it is not only your fans looking at your social media and other accounts. If your Ex discovers you are selling sexually explicit material of yourself on OnlyFans it could cost you child custody as one woman in Philadelphia found out.

Onlyfans child custody

City of Brotherly Love?

The Father and Mother were married for less than two years and had separated before their Child was born.  Since 2014 the couple shared legal custody. The Mother had a majority of the time, and Father had alternated two or four nights per week.

In 2020, Mother filed a petition to modify custody, alleging their Child was involved in two car crashes while being driven by Father’s new wife.

At the hearing, the Father defended by complaining to the court the Mother was posting sexually explicit photographs of herself on her OnlyFans website. The Father also made a ChildLine report about the Mother’s behavior.

The trial court immediately terminated the Mother’s contact with Child and ordered a forensic interview with Child. The court held that if the forensic interview revealed the Child was not aware of Mother’s OnlyFans activity, she would be granted supervised telephone calls – but no in-person contact pending a future court order!

However, if Child was aware of the Mother’s online activities, then Mother would be denied all contact with Child. The order also required the Mother to delete her OnlyFans  account and submit to a psychological evaluation.

The Mother filed a petition for emergency hearing after Children and Youth Services showed no sign of child abuse or that Child was aware of the Mother’s OnlyFans activity. The Mother’s petition was denied, but she was given back partial physical custody of Child every other weekend from Friday to Sunday evening, with Father retaining sole legal custody.

In 2020, Mother asked to modify the order asking the court for both shared legal and physical custody. In 2023, the family court awarded shared legal and physical custody of Child. At the hearing, the judge found there was no evidence that OnlyFans activity caused Child any harm, and ruled that the court was not permitted to “judge a parent’s private adult behavior outside the presence of the child”.

The Father appealed.

Florida Child Custody and OnlyFans

I’ve written about child custody issues before. In Florida, “custody” is a concept called parental responsibility, which can be either shared between parents, or one parent  can be given sole responsibility.

In child custody cases 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. This year, Florida enacted a law making a rebuttable presumption that equal time-sharing of a child is in the best interests. To rebut this presumption, a party must prove by a preponderance of the evidence that equal time-sharing is not in the best interests of the child.

Determining the best interests of a child is not entirely subjective. Instead, the decision is based on an evaluation of certain factors affecting the welfare and interests of the child and the circumstances of the child’s family. Some of those factors concern the moral fitness, and the mental and physical health of the parents.

Not Only Fans

On appeal, the Father argued the family judge did not appropriately consider Mother’s “poor life choices” when granting Mother shared legal and physical custody of Child based upon her prior OnlyFans site.

The appellate court noted the OnlyFans account was deleted in 2020, she has never posted adult content on any other site, her interactions with her patrons on the site were entirely virtual and solely through her pseudonymous username, and she never created content in her home when the  Child was present.

Additionally, the child investigation revealed that Father’s child abuse report was “unfounded.” In reviewing the best interests of the child factors in Pennsylvania, the trial court found that “none of the custody factors include the morality of a parent’s judgment or values.”

The trial court then determined that Mother’s OnlyFans activities were irrelevant to the court’s custody analysis because Father failed to establish the Mother’s activities on OnlyFans caused Child any harm. The record showed the Child was not aware of Mother’s activities. The Father presented no evidence to prove otherwise, and did not present evidence showing Mother’s OnlyFans activities raised any safety concerns because the Mother participated anonymously with her location shielded.

The appellate court agreed that a parent’s morality is not an enumerated custody factor in Pennsylvania, and the Court correctly rejected consideration of a parent’s morality or sexual lifestyle when determining custody where there was no finding of an adverse impact on the child.

The opinion is here.

Father Must Share Custody with Mother’s Boyfriend

Posted by Ron Kauffman on

In a custody decision that will surprise many family lawyers, a Pennsylvania court ordered the natural father of his child to equally share custody of his child with the Mother’s boyfriend. It is a decision that is putting the nature of parental rights back in the news. Will the natural father’s appeal be granted?

Custody Boyfriend

Loco Parentis

The child, S.J., was born in April 2020. At the time, the mother was in a relationship with a man named Kareem Smith. At the time of S.J.’s birth, Kareem thought he was the biological father.

Then the mother died in May 2021, and her boyfriend continued to act as the father.

Victor got a paternity test which confirmed that he, not Kareem, was the biological father of S.J. The Mother’s boyfriend, Kareem, was merely acting in loco parentis – a Latin term meaning “in place of a parent.”

About a month after the paternity test results showed he was the natural father, Victor filed an action for sole custody of S.J. against Kareem. A custody hearing was held in February 2023.

Victor’s position was that Kareem was effectively an interloper who was interfering with Victor’s rights as the parent.  The family court held a few proceedings to introduce Victor to S.J.  Afterwards, the family court entered a temporary order.

The temporary order determined that Kareem was a psychological parent of the child, or was in loco parentis status because of his involvement as the child’s perceived father for more than a year. The court then awarded shared legal custody and shared physical custody on a 50/50 basis to the two fathers.

The natural father appealed.

Florida De Facto Parents

I’ve written about parental responsibility in Florida before. 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.

The test applied to determine parental responsibility is the best interests of the child. Determining the best interests of a child is no longer entirely subjective. Instead, the decision is based on an evaluation of certain factors affecting the welfare and interests of the child and the circumstances of the child’s family.

Florida courts have considered the role of loco parentis, or psychological parents, like grandparents for instance, in a child’s life. Generally, in a dispute between a natural father and de facto parents, custody can be denied to the natural father only if there is clear and convincing evidence that the natural father abandoned the child, or is unfit, or placing the child with the natural father will be detrimental to the child’s welfare.

Heartbreaker in the Quaker State

On appeal, the Father argued that the trial court erred granting the mother’s boyfriend shared physical and legal custody of the child when the weight of the evidence was against shared custody.

The appellate court noted that in Pennsylvania, a natural parent has a prima facie right to custody, which will be forfeited only if convincing reasons appear that the child’s best interest will be served by an award to the third party.

The appellate court found no basis for changing the custody order because the family court judge found, by clear and convincing evidence, the need for stability and continuity in the child’s life was sufficient to overcome the presumption that custody be awarded to the natural parent. Because of the child’s “need for continuity”, and the fact that the two fathers co-parented well, the court affirmed the shared custody order.

The decision of the Superior Court of Pennsylvania is here.

Florida Releases Three New Child Custody Updates

Posted by Ron Kauffman on

Florida just released major new updates to our child custody and timesharing laws. With these new releases, family lawyers can expect a presumption in favor of a equal timesharing, some bug fixes, and overall improvements to enhance your user experience.

Child Custody Update

Florida Child Custody and Timesharing

Florida courts have consistently ruled that a parent’s right to the care and custody of his or her child is an important interest that is given deference unless there is some powerful countervailing interest requiring the child’s protection. Each parent also has responsibilities for their children, including supervision, health and safety, education, care, and protection.

Child custody in Florida is broken down into two distinct components: parental responsibility (which is decision-making) and timesharing (physical custody and visitation rights). Both components must be incorporated into a “parenting plan.”

Although the right to integrity of the family is among one of the most fundamental rights, when parents divorce or separate, the parents’ rights are subject to the overriding concern for the ultimate welfare their children. We call this, the “best interest” test.

Florida did not have a presumption in favor of any specific timesharing schedule. In establishing timesharing, the court always considered the best interests of the child and evaluated all factors affecting the welfare and interests of the child and the circumstances of the family.

What’s new in the latest release?

Equal Timesharing

One of the latest updates just released is a new presumption in favor of equal timesharing for both parents. According to the release notes:

There is a rebuttable presumption that equal time-sharing of a minor child is in the best interests of the minor child. To rebut this presumption, a party must prove by a preponderance of the evidence that equal timesharing is not in the best interests of the minor child. Except when a time-sharing schedule is agreed to by the parties and approved by the court, the court must evaluate all of the factors set forth in subsection (3) and make specific written findings of fact schedule when creating or modifying a timesharing schedule.

With this new update, Florida has created a rebuttable presumption that equal timesharing is in the best interest of the child at issue. As such, a court must operate under the rebuttable presumption in favor of equal timesharing when creating or modifying a parenting plan.

In order to overcome the new law’s rebuttable presumption, a party must prove by a preponderance of the evidence that equal timesharing is not in the best interests of the minor child.

The new law still generally requires a court to evaluate all factors listed under the statute, however now it requires the court to provide written findings of fact for such factors.

Modifications

A new bug fix is an update to the procedure for modification of parenting plans. Generally, a court may only modify a parenting plan and timesharing schedule after a substantial, material, and unanticipated change in circumstances has been established.

The requirement for a substantial change in circumstances promotes finality in family cases, and reflects the general belief that stability is good for children. The test to modify timesharing of a minor child is to prove circumstances have substantially and materially changed since the original custody determination; the change was not reasonably contemplated by the parties; and the child’s best interests justify changing custody.

Demonstrating a substantial change in circumstances is an extraordinary burden on users. But the burden was a design feature not a flaw. The heavy burden is intended to preclude parties from continually disrupting the lives of children by initiating repeated custody disputes.

However, when there have been significant changes affecting the well-being of the child, especially when the change of circumstances has occurred over a substantial period of time, changes may be necessary.

The new update streamlines the modification experience by removing the requirement that a party who demonstrates the alleged substantial and material change in circumstances which warrants modification of a parenting plan or timesharing schedule, must also demonstrate that the change be unanticipated.

Relocation

Another bug fix attempts to streamline the user’s relocation experience. There is currently no presumption in favor of or against a request to relocate with a child when the relocation will materially affect the current timesharing and contact with the other parent.

But simply relocating alone was not considered a substantial change in circumstances to warrant modification. If you were the user seeking to modify timesharing, you still had to overcome the substantial change test before a court could address the modification.

In custody disputes involving the relocation of a parent, courts generally conclude that the relocation does not amount to a substantial change if the relocation is not a significant distance away from the child’s current location. As such, a parent’s relocation alone is not considered a sufficient to trigger a modification of timesharing and custody under current law.

Under the new law, if the parents of a child live more than 50 miles apart when the last order establishing time-sharing is entered, and a parent subsequently moves within 50 miles of the other parent, then that move may be considered a substantial and material change in circumstances for the purpose of modifying the time-sharing schedule.

The move does not need to be unanticipated to warrant a modification of the time-sharing schedule. However, modification of the time-sharing schedule may not be permitted if the modification is not in the best interests of the child after an analysis of the statutory factors.

The new statutory amendments are here.

Version 61.13 will be available July 1st.

Religion Custody and Transgender Children

Posted by Ron Kauffman on

Whether a parent’s religion and religious beliefs can impact their ability to exercise child custody over transgender children is in the news. In Maryland, a father’s strict religious beliefs clashed with his children’s sexual orientation so much, the court had to step in to resolve the issue.

custody transgender

Fatti Maschii, Parole Femine

A Maryland couple with two children divorced in 2012. As part of their settlement, the parents agreed to joint legal custody. The Mother was to have primary physical custody, and the Father agreed to visitation every other weekend.

In 2022, Mother filed for a protective order for herself and on behalf of her two children, then aged 15 and 12. The Mother alleged the Father had caused her and the children mental injury based on abusive texts and emails he had sent to them.

At the injunction hearing, the Mother testified her older son told her he believed he was transgender. The Mother denied steering him toward identifying as transgender, but admitted she actively supported him by arranging for therapy and attending meetings of Parents, Families, and Friends of Lesbians and Gays.

When the child told his Father that he identified as transgender, the Father opposed his son’s decision and refused to call him by his preferred name. Then the child began engaging in the self-harming behavior of “cutting.”

The Father then texted his child:

“What is your email address? I’m sending you an email and I’m copying your mother and my lawyer. I’m t[ir]ed the BS manipulations. Your grandmother doesn’t call you S[.] and neither does either one of your aunts and uncle up here and for some reason my Christian beliefs are being attacked, so the intent is for a trial, so that everyone can understand what your mother that has manipulated a wedge after you and I had already came to an agreement [to call you a shortened version of your given name]. Thanks[.]”

Then the Mother testified that their second child, the younger of the two, told her he believed he was gay. The Father texted the younger child:

You can text me anytime. Just between us and call if you ever need to talk. I will tell you like I told you before—you are being heavily manipulated and influenced by your mother and sister. Son. Listen to your dad and our father who created us (God) in this matter. Please please do not allow these demons you are surrounded by influence you. Pray my son. For protection. I love you. Dad.

Father admitted: his relationship with his children is contentious, that he called the police after Mother took the children to a Pride Parade, and that he then called the Crisis Hotline and Legal Aid. He testified that he is concerned for his children’s souls and has no intent to harm them.

The trial judge found that, while the older child was “worried” he was not upset. However, the court found the younger child was “frightened” by Father’s behavior and “worries” that Father does not believe him about his sexual identity, believing instead that it has to do with Mother’s manipulation.

The court entered the protective order as to the younger child and denied the petition as to Mother and the older child. The Court prohibited the Father from abusing or threatening to abuse the younger child; from entering his residence; limited his visitation, and prohibited the Father from sending abusive texts about sexual orientation and/or religion. Father appealed.

Florida Child Custody

I’ve written about child custody and transgender issues before. Florida, unlike Maryland, does not have legal custody, but the parenting plan concept. For purposes of establishing a parenting plan, the best interest of the child is the primary consideration.

In Florida, the best interests of the child are determined by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family. Some of the factors a Florida court looks to include the demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, and the mental and physical health of the parents. None of the statutory factors involve the gender or sex of the parent and child.

In Florida, the court must order that the parental responsibility for a minor child be shared by both parents unless shared parental responsibility would be detrimental to the child. Detriment to a child could take the form of child abuse.

Child abuse is a defined term in Florida. In part, child abuse can mean injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment in the ability of the child to function within the normal range of performance and behavior as supported by expert testimony.

Strong Deeds, Gentle Words

In Maryland, the primary goals of their injunction statute are preventative, protective and remedial, not punitive. A judge may issue a protective order if they find abuse. In Maryland, “abuse” of a child is defined as the physical or mental injury of a child under circumstances that indicate that the child’s health or welfare is harmed or at substantial risk of being harmed.

On appeal the Father argued there was insufficient evidence to find that he caused mental injury to his younger child, or that he did so intentionally. But the appellate court ruled it was the younger child’s fear regarding Father’s views about his sexual orientation – and the Father’s seeming inability to see that his views caused and could cause a substantial risk of harm to his son – that the trial court had attempted to address in its order. Accordingly, the trial court’s restraining order was affirmed on appeal.

The unpublished Maryland appellate court opinion is here.

 

Calling a Stepparent Dad

Posted by Ron Kauffman on

An important aspect of child custody arises when families reorganize, and whether it is okay for a child to start calling a stepparent “dad” and “mom”. In a recent Pennsylvania case the issue was whether a family judge can order the Child to only call her biological parents “Dad” and “Mom”.

Stepparent Name

Name Calling

A Mother and Father were married in 2012, welcomed their first and only child O.K. in 2013, and then separated five years later. Mother was a client assistant and later a stay-at-home Mom. She re-married her new husband, (the Stepfather), with whom she has two children.

In 2018, the couple agreed to a week-on/week-off shared custody schedule that continued until 2020, when the family court reduced the Father’s timesharing to the first, second, and fourth full weekends of each month during the school year.

In 2021 the Father tried to modify custody and return to a week-on/week-off shared physical custody schedule and sole legal custody as to educational decision-making.

At the modification trial, the Mother testified to having the Child baptized without notifying Father and contrary to his known wishes, and that she would not discourage the Child from calling Stepfather “dad” or “daddy”. The family judge found Mother’s actions were part of a pattern of to diminish Father’s place and authority in the Child’s life.

The family judge modified custody and returned the parties to a week-on/week-off physical custody schedule, denied the Father’s request for sole legal custody concerning educational decision-making, and importantly, held the Mother in contempt.

Mother moved to reconsider, asking the court to vacate the provisions compelling co-parent counseling and requiring the parties to correct the Child’s use of names like “Mom” and “Dad” for the parties’ significant others.

The trial court then granted Father limited sole legal custody to make medical decisions as to whether the Child receives the COVID-19 vaccination and any subsequent boosters of that vaccine and denied Mother’s emergency motion for reconsideration and injunctive relief. The Mother appealed.

Florida Parental Responsibility and Stepparents

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.

At the trial, the test applied is the best interests of the child. Determining the best interests of a child is no longer entirely subjective. Instead, the decision is based on an evaluation of certain factors affecting the welfare and interests of the child and the circumstances of the child’s family.

A stepparent does not acquire all of the rights or assume all of the obligations of a child’s natural parent in Florida. Stepparents have the difficult task of raising a child that is not biologically or legally their own. Sometimes, stepparents are responsible for providing love, financial support, and supervision when there is an absentee natural parent. When a stepparent remarries and wants to have legal rights in connection with the spouse’s child, adoption is the right path.

The Constitution and Names

On appeal, the Mother argued it was wrong to restrict the child to referring only to her biological parents and “dad” or “mom” in that it violated the Child’s First Amendment right to freedom of speech.

In custody matters, the paramount concern is the best interest of the child involved. However, in cases raising First Amendment issues, a court has to examine the  record to make sure the judgment does not violate free expression.

Generally, content-based restrictions on speech are presumptively unconstitutional and are subject to strict scrutiny. Strict scrutiny requires the government to prove the restrictions are narrowly tailored to serve a compelling state interest.

While a state has an interest in protecting the physical and mental health of a child, that interest is not triggered unless a court finds that the restricted speech caused or will cause harm to a child’s welfare.

The family judge ordered:

“The parties shall not encourage the Child to refer to anyone other than the parties as Mother, Mom, Father, Dad, [et cetera.] In the event the Child refers to a party’s spouse or significant other in such a way, that party shall correct the Child.”

The court restricted the Child’s use of the terms “Mom,” “Dad,” to the Child’s biological parents. Accordingly, the order was a content-based restriction subject to strict scrutiny.

Father testified that the Child is calling Stepfather “Dad” or “Daddy,” a term that applied only to Father during the Child’s first five years of life – years during which Father testified he was the Child’s “stay-at-home Dad.”

Mother testified that it is “unreasonable” to expect the Child, at age 8, to call Stepfather by a name different from what her two younger half-siblings will use in the future.

The court held it was unreasonable for Mother to expect that Father share the title “Dad” with Stepfather, in light of evidence that Mother has acted to diminish Father’s role in the Child’s life, such as leaving him in the dark regarding a baptism.

The family judge’s imposing a restriction on the Child’s speech, did so in an attempt to further the state interest in protecting the Child’s mental and psychological well-being by maintaining and strengthening the strained relationship between Child and Father.

However, the restrictions were not narrowly tailored to further the state’s compelling interest without a finding by that the use of the term “Dad” or “Daddy” to refer to Stepfather caused harm or will cause harm to the Child.

Indeed, the text of the trial court’s order suggests that the trial court was concerned that the parents’ mutual ill-will and mistrust may have cultivated unhealthy bonds between the parents and the Child, not that the terms the Child used to refer to her parents and stepparents were central to that process.

Without a finding that the Child’s use of the terms “Dad” and “Daddy” to refer to Stepfather posed a tangible risk of harm to the Child, the appellate court was constrained to vacate the content-based restriction.

The opinion is here.

Pet Custody in Tennessee

Posted by Ron Kauffman on

The issue of pet custody is increasingly becoming big news in many jurisdictions as people’s views of their relationships with pets change. A new proposed Tennessee pet custody bill could bring a pet custody and visitation law to the Smokey Mountains.

pet custody tennesee

Pet Custody at its Best

Generally, when couples divorce, current law has always been that pets are treated pretty much the same as ownership of your living room couch would be – or any other piece of property for that matter. There has traditionally never been a thing called pet visitation at common law.

Two Tennessee state lawmakers are now trying to change the traditional way of dealing with pets in divorce with some new legislation. According to reports, the new bill would allow a family law judge to determine pet custody based on what’s in the best interest for the wellbeing of a pet.

Tennessee HB467/SB568 essentially states that the family law court may provide for the ownership or joint ownership of any pet or companion animal owned by the parties, taking into consideration the well-being of the animal. If passed in its current state, the act would take effect July 1, 2023.

Tennessee Representative, Caleb Hemmer, a Nashville Democrat, said he tackled the issue because custody of a pet can be a deeply emotional issue.

“For many people, pets are like family members and even cared for like children. It only makes sense for courts to treat them the same way.”

Politicians began to research passing a bill after they personally lived through the painful experience of losing custody of the family dog during a divorce.

Florida Pet Custody

I’ve written on the development of pet custody cases and statutes around the world before. Pet custody cases are becoming more and more prevalent internationally because lawmakers and advocacy groups are promoting the notion that the legal system should act in the best interests of animals. This is due, in part, because pet ownership has increased.

Pets are becoming a recognized part of the family. Some would argue they’re a modern couple’s new kids. About 15 years ago, states began to allow people to leave their estates to care for their pets. Recently, courts have gone so far as to award shared custody, visitation and even alimony payments to pet owners.

Florida doesn’t have pet custody or visitation laws. Florida courts are already overwhelmed with the supervision of custody, visitation, and support matters related to the protection of children.

Not all states have ruled out a visitation schedule for dogs like Florida. For instance, while Texas also views dogs as personal property, in one case a Texas court authorized visitation. A new California law changed the way pet custody is handled in divorce cases. The law gives judges the power to consider the care and the best interest of the pet when making decisions.

According to a recent survey of the American Academy of Matrimonial Lawyers, about 30% of attorneys have seen a decrease over the past three years in pet custody cases in front of a judge.

Over the last decade, the question of pet custody has become more prevalent, particularly when it involves a two-income couple with no children who shared responsibility for, and are both attached to, the pet.

Smiling in the Smokey Mountains

The issue of pet custody is gaining traction around the U.S. and the world as pet ownership climbs. The COVID pandemic help to further propel pet ownership and this issue. A new Forbes Advisor survey found that an overwhelming majority of pet owners – about 78 percent – acquired their pets during the pandemic.

Already about five states and Washington D.C. have passed similar pet custody laws. The current bill proposal by Tennessee politicians Hemmer and Yarbro applies to any pet owned by a married couple.

The American Academy of Matrimonial Lawyers has repeatedly reported that there’s been an ever increase in arguments over pet custody in recent years. Additionally, the drafters of the Tennessee bill want more jurisdictions to pass pet custody laws.

The Axios Nashville article is here.

Changing Gender and Child Custody

Posted by Ron Kauffman on

Florida courts do not weigh a parent’s gender when determining child custody. However, in some countries, gender matters. Why? Because the law can make a presumption that during a child’s “tender” years, around age four and under, the mother is awarded child custody. One father in Ecuador decided to tilt the odds in his favor by changing his gender.

Gender Custody

Paying the Cuenta in Cuenca

On the morning of December 30, 2022, in the dusty town of Santa Ana de los Cuatro Ríos de Cuenca, Ecuador, René Salinas Ramos decided to change his gender from male to female and fight for custody of his two daughters. Salinas had a major complaint about the country’s child custody laws. Namely, the laws gave more rights to the mother than the father.

“My actions are not against anyone in particular but against the system. Being a father in this country, Ecuador, is punished and seen only as a provider.”

The Father was interviewed by La Voz del Tomebamba radio. During the interview he showed his new country ID card, which has his new gender data, “FEMENINO.” However, his ID contains the same names with which he was enrolled with originally over 47-years ago.

While the ID card has his gender as “femenino”, he still identifies himself as a cisgender male. Ecuador passed a law in 2015 that allows people to legally change their gender on government-issued documents.

Florida Child Custody

I’ve written about child custody before. Unlike Ecuador for example, Florida does not apply the “tender years doctrine” anymore. Florida has the parenting plan concept. For purposes of establishing a parenting plan, the best interest of the child, not the gender of the parent, is the primary consideration.

In Florida, the best interests of the child are determined by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including the mental and physical health of the parents.

Some of those factors include the demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required, and of course, the mental and physical health of the parents. None of the statutory factors involve the gender or sex of the parent and child.

It is also the public policy of Florida that each minor child has frequent and continuing contact with both parents after the parents separate and to encourage both parents to share the rights and responsibilities, and joys, of childrearing.

When it comes to the parents’ gender, Florida makes no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.

In Florida, the court must order that the parental responsibility for a minor child be shared by both parents unless shared parental responsibility would be detrimental to the child.

Género, patria y libertad!

According to Salinas, his daughters live with their mother in an environment in the midst of violence. These allegations of violence are reportedly denounced. Salinas boasts that now that he is a woman, he can be a mother and is on an equal footing to fight for the parental authority of his daughters.

“It is more than five months that I do not see my daughters. I can also be a mother, I know how to cook, give love, iron and other activities of a mother.”

However Salinas never explained what prevents Salinas from approaching the children. In the Father’s opinion, justice is biased in favor of women when it comes to parenting and, according to Salinas, to be on an equal footing, he no longer wants to be called dad, but mom.

“The laws say that the one who has the right is the woman. As of this moment, I am female. Now I’m also a mom, that’s how I consider myself. I am very sure of my sexuality. What I have sought is that I want to be a mother, so that I can also give the love and protection of a mother.”

Until this matter is resolved the children have to stay with their mother he told the media. The law is taking away our right to be parents and changing his official ID to show a new gender “is a proof of love.”

Salinas Ramos is reportedly the first man in Ecuador to use gender laws to gain the upper hand in a custody battle, and news of the gender change has set off criticism from transgender activists in the South American country.

Money may also be an issue. According to reports, the judicial system portal may reflect that the Father maintains a debt with his former and current spouse. This amounts to $10,766 for alimony.

Regarding the breach of this responsibility, Salinas justified that in the case of the current spouse he made an agreement, because he paid all the basic services and school obligations. Additionally, he mentioned a document signed by the mother in which she renounces the debt, but Salinas did not show it, and the document does not appear to be recorded in the computer system either.

Salinas hopes that the issue of the possession of girls will continue to be debated not only at the social level, but also in the Assembly. He acknowledged that after his gender change on the ID he has received calls for support from organizations and even politicians, but he does not want the issue to be mixed with the campaign and preferred not to approach them.

The La Voz Del Tomebamba article is here. (en Español)

Shucking Child Custody and Freedom of Speech

Posted by Ron Kauffman on

Constitutional guarantees of freedom of speech and child custody rights are in for a shucking when an Indiana family court modifies a marital settlement agreement. Years after a divorce, one of the parents discovers religion. The parents end up back in court on a petition to modify custody and prohibit a parent from talking about religion.

Going Back To Indiana

The parents of a daughter were divorced in September 2012 after the trial court accepted the parties’ settlement agreement. Pursuant to their agreement, the parties shared joint legal custody of the Child, the Father paid weekly child support, the Mother was the Child’s primary physical custodian, and Father exercised parenting time.

Then in 2022, the Mother filed a petition to modify, asserting a substantial change in circumstances in that she and the Child changed churches, and she and the Child now attend Seymour Christ Temple Apostolic.

Since changing churches, the Child stopped painting her nails and now wears only long skirts. The Child attends church three times a week, on Sunday morning and Sunday evening for services and on Thursday night for youth group.

The Mother admitted the Child was baptized without informing Father until after the baptism occurred. Mother testified she wanted the trial court to modify the parenting time to eliminate the Father’s ability to question the Child’s religion or try to talk the Child into believing that there is no God.

The Father testified he is an agnostic. He denied telling Child “there wasn’t a God” and testified he had not tried to “convince her the church she goes to isn’t something she should be attending. He said he wanted Child to make her own choice about religion.

The judge conducted an in camera interview with Child, and concluded:

The Court finds that [Child] has made an independent well-reasoned decision about her faith, which should be respected and encouraged.

The Court awarded the Mother sole legal custody of the Child, primary physical custody, and ordered that the Father shall not discuss religion with Child. The Father appealed.

Florida Child Custody and Free Speech

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children. Florida courts have to balance a parent’s right of free expression against the state’s parens patriae interest in assuring the well-being of minor children.

In Florida, there have been cases in which a judge prohibited a parent from speaking Spanish to a child. A mother went from primary caregiver to only supervised visits – under the nose of a time-sharing supervisor. The trial judge also allowed her daily telephone calls with her daughter, supervised by the Father, and 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. The Mother was also bipolar and convicted of two crimes. The Florida appeals court reversed the restriction. Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy.

Florida law tries to balance the burden placed on the right of free expression essential to the furtherance of the state’s interests in promoting the best interests of children. In other words, in that balancing act, the best interests of children can be a compelling state interest justifying a restraint of a parent’s right of free speech.

“Ope, sorry!”

On appeal, the Father argued the family judge erred when it modified custody based solely on religious beliefs and prohibited him from talking about religion with his Child.

In Indiana “religion” is not one of the statutory factors a trial court must consider when making a decision to modify child custody. Modifying custody based entirely on religion then – even if the Child expressed an interest in participating in religious activities at a church – was not a substantial change in circumstances to justify changing custody.

The appellate court also found the First Amendment of the U.S. Constitution – which prohibit the government from restricting expression because of its message, its ideas, its subject matter, or its content- was also violated.

In this case, the family court judge never found the Father was discussing religion with Child in a way that had a negative impact on her. The Mother testified Child “cries is withdrawn presents with a rash and/or hives, and her face is puffy” after visiting with Father. However, Mother did not specifically attribute Child’s reactions to discussions of religion between Father and Child.

The Mother did not testify about a specific instance during which Father spoke to Child about religion in general, much less a time when Father disparaged Child’s religious views or attempted to persuade Child there was not a God. For his part, the Father testified he never told the Child there was no God. In fact, he wanted the Child to make her own choices about religion.

Even if the Child had reported that Father was disparaging her religious views and telling her there was no God, the trial court’s total prohibition of Father’s right to discuss religion with Child is not narrowly tailored to further the State’s compelling interest in protecting Child’s welfare.

The family court judge’s order totally prohibiting Father from discussing religion with Child violated his right to free speech under the First Amendment. Because the appellate court reversed, it decided it did not need not address whether the order also violated his freedom of religion argument.

The Court of Appeals of Indiana opinion is here.

Pet Custody in China

Posted by Ron Kauffman on

Pet custody is sweeping the world. In the People’s Republic of China, a recent divorce settlement was stalled after the divorcing couple was unable to agree on who was entitled to custody of the pet corgi.

Pet Custody

The New Kids in Divorce?

The couple, surnamed Xu and Li, from Quzhou city in Zhejiang, one of the more wealthy provinces in eastern China, agreed to get divorced in April this year. The parties reached agreement on the distribution of their joint assets and debts after their seven-year marriage, with one furry exception.

The couple have no children, but both are enthusiastic animal lovers. Accordingly, custody of a pet corgi dog they had raised together became a central focus of their divorce.

The family court helped the couple divide up joint assets, including property and vehicles quickly, as neither party had any objections. However, when it came to their pet dog, the court was surprised that both demanded full custody of the pet corgi.

Florida Pet Custody

I’ve written on the development of pet custody cases and statutes around the world before. Pet custody cases are becoming more and more prevalent internationally. That’s because lawmakers and advocacy groups are promoting the notion that the legal system should act in the best interests of animals as pet ownership increases.

Pets are becoming a recognized part of the family, some would argue they’re a modern couple’s new kids. About 15 years ago, states began to allow people to leave their estates to care for their pets. Recently, courts have gone so far as to award shared custody, visitation and even alimony payments to pet owners.

Florida doesn’t have pet custody or visitation laws. Florida courts are already overwhelmed with the supervision of custody, visitation, and support matters related to the protection of children.

Not all states have ruled out a visitation schedule for dogs like Florida. For instance, while Texas also views dogs as personal property, in one case a Texas court authorized visitation. A new California law changed the way pet custody is handled in divorce cases. The law gives judges the power to consider the care and the best interest of the pet when making decisions.

According to a recent survey of the American Academy of Matrimonial Lawyers, about 30% of attorneys have seen a decrease over the past three years in pet custody cases in front of a judge.

Over the last decade, the question of pet custody has become more prevalent, particularly when it involves a two-income couple with no children who shared responsibility for, and are both attached to, the pet.

Quzhou’s Corgi Custody Case

The woman, Xu, told the court that she deserved ownership of the corgi. She testified that not only did she buy the dog, but that she raised the corgi by herself. The corgi has become a part of her family and has been by her side ever since, she claimed.

In undermining the Husband’s custody request, she added that her ex-husband Li didn’t take responsibility for looking after the corgi. She described him as a workaholic, who in his spare time played video games.

Although Li acknowledged that he did not feed the animal as often as his ex-wife, or clean up after it, he said he often walked the dog and considered it to be his child.

The court accepted that the corgi was a joint asset in the marriage, but one which couldn’t be divided easily. Eventually, the couple reached an agreement that the corgi would live with the woman, while every month Li should pay alimony to her for taking care of the dog. If the animal became ill, they must share the dog’s medical expenses. Li was given legal visitation rights to the corgi.

After the story was reported, it caused widespread online conversation about the fate of pets in a divorce. One person commented: “A pet is a part of the family, it’s understandable the divorcing couple wanted to fight for it.” Another said: “Now that more couples give up on having children, keeping pets as kids will probably rise.”

Data showed that in 2021 the number of pet owners in China had reached 68.44 million. In the U.S. roughly 70 percent of households own a pet, with dogs being the most numerous pet and salt water fish coming in last.

The South China Morning Post article is here.