Category: Child Custody

COVID Custody and Vaccinations

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COVID and child custody are back in the news as news of the availability of vaccinations hitting the market becomes a reality. COVID first made family law news in Miami early in the pandemic, when an E.R. doctor was stripped of custody of her 4-year old daughter. What impact will COVID vaccines have on custody?

covid custody vaccine

Getting to the Point

In a recent Broward case, Melanie Joseph wanted to see her son, but a judge wouldn’t let her — for no reason except that she won’t wear a mask. Joseph’s 14-year-old son has asthma, a condition that could put him at risk of contracting COVID-19 during this pandemic, court filings show.

Broward Circuit Judge Dale Cohen called the mother an “anti-mask person” who had the “audacity” to brag about it on Facebook. Many take issue with the decision, but it illustrated how judges in family court consider the health risks of COVID-19.

Other cases followed across the country, most involving at least one parent working on the front lines of the crisis. Judges have been patient in considering both sides of coronavirus cases, but that doesn’t mean they’re not willing to step in when they think the child’s health might be at risk.

Florida Vaccinations and Child Custody

In Florida, the prevailing standard for determining “custody” is a concept call shared parental responsibility, or sole parental responsibility. 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.

Issues relating to a child’s physical health and medical treatment, including the decision to vaccinate, are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court.

At the trial, the test applied is the best interests of 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.

I wrote an article on the relationship between vaccinations and child custody in Florida before. In Florida, a court can carve out an exception to shared parental responsibility, giving one parent “ultimate authority” to make decisions, such as the responsibility for deciding on vaccinations.

The decision to vaccinate raises interesting family law issues. It is important to know what your rights and responsibilities are in Florida.

A Dose of Reality

Melanie Joseph, who moved to North Carolina from Coral Springs at the outset of the pandemic response, drew Broward Circuit Judge Cohen’s ire by posting a picture of herself on social media that went viral: it showed her not wearing a mask while in the waiting room of her oral surgeon’s office in June.

Joseph’s selfie ran with the caption “no mask for this girl” on social media, drawing the ire of the Broward judge handling her custody case. She defended her selfie by saying she was alone in a doctor’s waiting room in North Carolina, where there was no mask requirement at the time.

“She’s one of those anti-mask people and she’s got the audacity to post that on social media,” the judge said. “She’s going to wear a mask. If she doesn’t, time-sharing is not going to happen.”

Cohen’s pointed criticism came in an online hearing Sept. 8 and prompted Joseph’s attorney to ask him to remove himself from the case, which has dragged on for 13 years (the child at the heart of it is 14). Cohen declined.

The judge said in-person visits would have to be supervised because he doesn’t trust Joseph, 43, to wear a mask. And he would not consider a long-distance parenting plan — which outlines each parent’s rights when they don’t live in the same state — between Joseph and her son until the COVID crisis has passed.

“When this pandemic is over and there’s no cases and there’s a vaccine … the mother is going to need to get a vaccine as well. When I have proof that everybody’s safe and the child’s not at risk or danger, then we can talk about a long-distance parenting plan.”

Ultimately, the issue of masks never made it into Cohen’s written ruling, issued late last week, and he softened the vaccine mandate. The order states:

“After a safe and reliable vaccination against COVID-19 is available, the mother may be vaccinated and the child may be vaccinated, thus eliminating that particular danger.”

Joseph acknowledged in an interview that she posted a selfie taken at her oral surgeon’s office in June. “No mask for this girl,” she wrote in the caption. At the time, Joseph said, there was no mask mandate in North Carolina and she was alone in her doctor’s waiting room.

She accused the judge of letting his personal political views cloud his judgment in the case. “My case has been in the court system for a number of years and I have experience with court proceedings,” she said. “What occurred is unconstitutional and should never happen to a parent.”

The child’s father thinks Cohen made the right decision. “My client has a legal obligation to protect his son,” said Donna Goldman, the father’s attorney. “This case has been going on a long time, and the judge weighed more than just COVID. He made the right decision to protect the child’s health.”

The Sun Sentinel article is here.

Religious Education, Child Custody & Stephens’ Squibs

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Choosing between a secular and religious education is a common problem in child custody cases. When two Canadian parents couldn’t decide between a religious or secular school for their son, an Ontario family court judge decided the issue with the force of Niagra Falls.

Custody Educaton

Oh Canada

In one recent case, the father and the mother, who were married then separated, disagreed on the school that their three-year-old child would attend.

The father wanted the child to go to the Thornhill Nursery School and Kindergarten, a secular school, while the mother preferred for the child to go to the Associated Hebrew Schools, a private Jewish school. Both parents were Jewish and were raising their child in the Jewish faith.

The father argued that their son had previously attended the secular school and would benefit from the stability of returning there, that the cost of this school was significantly lower and that the child could have a separate Jewish education on Sundays.

Conversely, the mother argues that she has always remained steadfast in her belief that it is best for Joshua to attend AHS, a private Jewish school.  She alleged that their son is Jewish as are both parents and both sets of grandparents.

Their son was being raised in the Jewish faith. that requiring the child to have a separate Jewish education on Sundays would limit his time with his family and friends, and would result in additional costs.

Florida Education and Child Custody

I’ve written about custody and education issues before. In Florida, shared parental responsibility is the preferred relationship between parents. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

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

Determining the best interests of a child is based on an evaluation of statutory factors, and one equitable catch-all factor, affecting the welfare and interests of the child and the circumstances of the child’s family.

The statute authorizes one parent to have ultimate responsibility for certain decisions. For example, education is an area of ultimate responsibility a court can award. When a decision on education goes to trial, the court grants one parent ultimate responsibility to make that decision.

A CN Tower-ing Decision

The Ontario Superior Court of Justice decided that it was in the child’s best interests for his parents to enroll him at the Associated Hebrew Schools.

The Court based its decision on the best interest of the child. The best interest is not merely a label, but required the Ontario family court to consider the child’s needs and circumstances, including, the emotional ties between the child and each family, people involved in the child’s care and upbringing; and the child’s preferences among others.

The family law judge found that both parents agreed that the child should be in school despite the risk of Covid-19 and should be raised as a member of the Jewish faith.

Both schools were adequate educational facilities which have adequately addressed Covid-19 risks.  In terms of geographical proximity neither requires extensive travel and the child will experience change whichever school he attends.

The civil family judge in Canada reasoned the religious school was in the child’s best interest because it offers an academic education, religious instruction and Hebrew during the week.

This was preferable to the father’s request he be enrolled in a supplemental Jewish Program in addition to his secular school. The supplemental Jewish Program would occur on Sundays and parenting time is precious and weekend times are crucial.

The judge also determined that the cost of religious school was not significantly more than the secular for junior kindergarten.  While religious school tuition is $14,185, and secular school is $8,530, the added cost of the weekend supplemental Jewish Program raised the cost goes to $9,530.  And, religious tuition is eligible for a charitable tax receipt making the after-tax cost of tuition considerably lower.

Even when the parents are more closely aligned in their religious beliefs, sharp conflict can still arise over the form that the child’s religious education is to take, regarding religion and co-parenting arrangements.

The Ontario family court decision is available here.

Speaking on Stephens’ Squibs

I always enjoy talking with Eddie Stephens. Not surprisingly, I had a great time on Stephens’ Squibs, his monthly family law continuing legal education seminar where we discussed our recent constitutional victory in the appellate court – one of the rare times a divorce and family law case can turn on a constitutional question.

Episode 4, will be available on demand beginning November 15, 2020.

Learn more here.

 

Upcoming Speaking Engagement on Parenting Plans

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I look forward to speaking about child custody and timesharing parenting plans on December 4th at the Dade County Bar Association & Dade Legal Aid/Put Something Back “Nuts and Bolts of Family Law” Seminar. I will be speaking along with my colleagues, Hon. Samantha Ruiz Cohen, Michelle M. Gervais, Robert C. Josefsberg, Amber Kornreich, Paul R. Lipton and Jacqueline M. Valdespino.

Child Custody Parenting Plans

Dade Legal Aid/Put Something Back

Dade Legal Aid provides direct civil legal services for low-income residents of Miami-Dade County. Since 1949, we have been passionately committed to providing “Access to Justice” to those in need of legal representation, including low-income individuals and families impacted by the current health crisis.

Dade Legal Aid provides life-changing and often life-saving services in the areas of Family Law, Domestic Violence, Guardianship, Child & Teen Advocacy, Human Sex Trafficking, Guardian ad Litem and other areas of law.

Annually, the agency serves over 5,000 clients positively impacting the lives of over 10,000 residents utilizing a strategic mix of experienced staff attorneys, pro bono attorneys, law firm partnerships, law school stakeholders and dozens of collaborations with diverse organizations and groups with the aim of assisting vulnerable populations and families living in poverty

Child Custody and Timesharing

I will be discussing parenting plans, a topic I’ve written and spoken about before. Generally, a parenting plan is a document created by lawyers or the court to govern the relationship between parents relating to decisions that must be made regarding their minor children.

Parenting plans must contain a time-sharing schedule for the parents and children too. The issues concerning the minor children should also be included, and consist of issues such as the children’s education, their health care, and physical, social, and emotional well-being.

When creating parenting plans, it is important to consider all of the circumstances between the parents, including the history of their relationship, whether there are any issues about domestic violence, and many other factors must be taken into consideration.

A parenting plan has to be either developed and agreed to by the parents and approved by a court; or in the alternative, a parenting plan must be established by the court – with or without the use of a court-ordered parenting plan recommendation – when the parents cannot agree to a parenting plan, or the parents agreed to a plan, but the court refuses to approve the parents’ plan.

Register here.

 

Swinging into Child Custody Co-parenting

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Four years after Spiderman star Tobey Maguire separated from his estranged Wife Jennifer Meyer, the couple is swinging into a new life of child custody and co-parenting in a way many divorcing couples should stick to.

Spiderman coparenting

Spiderman Meets Divorce Court

The two are officially ending their marriage. Four years after splitting, Meyer filed for divorce from the actor. Jennifer Meyer announced their separation, but the issues that led to the end of their nine-year marriage are not new.

“They’ve been living separate lives for a while. They have completely different interests and haven’t seemed to be connecting.”

Part of the problem seems to be a personality clash. “He’s extremely private and prefers to stay home, and she’s very social and has tons of girlfriends,” the source explains.

“They haven’t been happy together for a long time. But they are great parents, and they love their children.” A family friend echoed the couple’s devotion to their children. “It’s a marriage that’s ending, but a bond and a family as strong as any I know. They’re remarkable people. And very supportive of each other.”

Florida Co-Parenting

The question about an award of custody of children frequently comes up and is a matter I’ve written about before. Many people are surprised to learn that the term “custody” is no longer recognized in Florida.

Florida replaced the “custody” term for the “parenting plan” concept in order to avoid labeling parents as “visiting parent” or “primary parent” in the hopes of making child custody issues less controversial, and encourage parents to co-parent more effectively.

Under Florida’s parenting plan concept, both parents enjoy shared parental responsibility and a time-sharing schedule. “Shared parental responsibility” means both parents retain full parental rights and responsibilities and have to confer with each other so that major decisions affecting their child are made jointly.

A time-sharing schedule, as the name suggests, is simply a timetable that is included in the parenting plan that specifies the times, including overnights and holidays, that your child spends with each parent.

Florida’s parenting plan concept has changed sole custody into “sole parental responsibility.” The term means that only one parent makes decisions regarding the minor child, as opposed to the shared parental responsibility terms, where both parents make decisions jointly.

Spidey Sense

Maguire, 41, and Meyer, 39 met in early 2003 and were married four years later in an intimate wedding ceremony in Hawaii, witnessed by a small group of family and friends.

At the time Meyer, a jewelry designer, shared her feelings about the big moment, telling USA Today, “Let’s just say this is truly the best time of my life. I’m walking on air. I’m getting married, starting a family and have an amazing company.”

The actor, who has spoken out about having a rocky childhood, revealed that settling down was a big priority in his life.

“Growing up the way I did, I had a very serious ambition to make some money, to have some security and comfort in my life,” he told Parade magazine in 2007.

Maguire has been keeping a low profile in Hollywood since wrapping up Spider-Man 3 — his final outing with the franchise — in 2007, appearing only in a handful of carefully selected projects including 2013’s The Great Gatsby and 2015’s Pawn Sacrifice, his last film to date.

The actor has also been seen hanging with pal Leonardo DiCaprio and girlfriend Nina Agdal, mostly recently on a yacht in Ibiza.

Maguire and Meyer also attended Jennifer Aniston and Justin Theroux’s secret wedding last year (Meyer designed Aniston’s wedding ring), and eventually joined Aniston and Theroux on a group honeymoon trip to Bora Bora that included a slew of other friends.

“They have completely different interests and haven’t seemed to be connecting,” the insider said at the time. “He’s extremely private and prefers to stay home, and she’s very social and has tons of girlfriends.”

“They haven’t been happy together for a long time,” the source continued, “but they are great parents, and they love their children.”

Despite their separation, the duo seems to have remained on friendly terms. The Spider-Man star has shown up to support Meyer in the years since their split. In 2018, Maguire attended the opening of his ex’s jewelry store in Los Angeles and posed for photos with Meyer.

In June, Meyer wished Maguire a happy Father’s Day on Instagram, calling the actor her “best friend.”

“To the best baby daddy. All is can say is no matter what happens in life, to relationships etc…. choose a dad for your kids that you can count on forever. This one right here is my best friend and the greatest dad to our babies. I’m sorry Tobey, I know you hate Instagram, but every once in a while I like to brag to everyone about how special you are ❤️ Happy Father’s Day.”

The People article is here.

 

Your Nanny Could Be Entitled to Custody and Visitation

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A married high school teacher in Vermont recently learned that the troubled student she and her husband took in, and who helped with nanny duties, could be entitled to custody and visitation of her child as a ‘de facto’ parent. How did the Vermont Supreme Court just decide the issue?

de facto parent 2

Half Baked Parents

A 5-year old boy is the biological son of a Mother and Father. The Mother is a 41-year old high school teacher who was pregnant with a child. The Plaintiff (Student) was a female high-school student from an abusive household who always relied on the Mother for moral support.

When the Student turned 18, she was kicked out of her own home, was welcomed into the Mother and Father’s home, paying $100 a month for utilities and helped with chores. Two weeks after moving in, the Student left to attend college in northern Vermont and returned on the weekends.

The Student and the Father started a romantic relationship, which turned into a polyamorous sexual relationship involving the Mother: they slept in the same bed and of course, got matching tattoos.

The Mother and Student went to the Mother’s prenatal visits, she was present for the baby’s, J.F., birth, and even cut the umbilical cord. But unbeknownst to the other two, the Mother went to a divorce lawyer.

The Father later found evidence the Mother was having an affair. As retaliation, the Father and Student took the Mother’s phone, her high-heeled shoes – calling them her “whore shoes”— her makeup, and used FBI interrogation methods such as sleep deprivation on the Mother.

After the Mother filed for divorce, the Student sought custody as a de facto parent when the Mother would not allow her to see the baby.

Florida De Facto Parents

I’ve written about various custody issues involving non-biological parents before – in Florida it has typically meant grandparent visitation rights. Often times people who are not married, not adoptive parents, and not biological parents, are involved in raising a child. When relationships sour, the non-parent seeks visitation and timesharing of a child that’s not really theirs.

Florida’s rules regarding visitation and timesharing are governed by statute. And by its explicit provisions, the statute applies only to parents’ visitation rights and does not extend to nonparents.

There are a few Florida cases that have applied the law to hold that nonparents are not entitled to visitation. Because of these cases, non-parents do not have standing to even ask the court for visitation and timesharing.

The role of the de facto parent is very fragile. The Florida Supreme Court, relying on the 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.

The distinction between “adoptive or biological parents” is critical in Florida. The law is clear: those who claim parentage on some basis other than biology or legal status do not have the same rights, including the right to visitation, as the biological or legal parents.

A Chunky Monkey Decision

Back in Vermont, after extensive hearings, the family court judge refused to find the Student was a de facto parent, and the Student appealed, ending up in the Vermont Supreme Court.

The high court upheld the family court judge, who found that the Student failed to prove her role in the family was more than that of a nanny. Simply taking care of the baby when mother was at work, not on weekends, vacations, or during the evenings or overnight was not enough.

The court also rejected the Student’s argument that she was a de facto parent because she didn’t hold out J.F. as her own child. A few Facebook posts over the course of four years was not considered enough.

Finally, the court concluded that continuing the relationship was not in J.F’s best interests because of the controlling nature of the Father’s and Student’s relationship with the Mother. Getting the Mother suspended, taking away her shoes and the sleep deprivation techniques, all had a negative impact on the child – causing difficulty sleeping, constipation, and bedwetting.

Additionally, the court was concerned that the Student having report the Mother to the school and getting her suspended from her job, meant that a continuation of the Student’s relationship with the child could result in continuing control over the Mother, and that control was not in the child’s best interests.

The Vermont Supreme Court decision from Reason.com is here.

Religion LGBTQ+ and Custody Rights Erupt

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Religion LGBTQ+ and child custody rights recently erupted in a Washington federal court. Parents usually have the right to direct the religious upbringing of their children, but one couple found their religious beliefs prevented them from even becoming parents.

Parent Custody

Rumblings

James and Gail Blais wished to become foster parents, and eventually adopt, Gail’s biological great-granddaughter, H.V. The first step to adoption requires them to be licensed foster parents. However, they are observant Seventh day Adventists.

The reason for the need to become foster parents so quickly is because shortly after H.V.’s birth – in fact, while she still was in the hospital – H.V. was removed from her biological parents and placed in foster care out of concerns for her welfare. H.V. is an infant. At no time during the application process has she exhibited any issues with regard to sexual orientation or gender preference.

The Blaises wanted to care for H.V. by becoming her foster parents with the goal of adoption if reunion with her mother was not possible. They are the only biological relatives who have expressed an interest and ability in fostering and adopting H.V.

The Department administers the State’s foster licensing and placement program, and the requirements for becoming a foster parent are laid out in Washington law and the Department’s Policy 6900, entitled “Supporting LGBTQ+ Identified Children and Youth.”

The Blaises participated in Department mandated training and required certification courses. They made clear that, as Seventh-day Adventists, they believe it is important to love and support all, particularly youths who may feel isolated or uncomfortable because of who they are.

But with regard to the specific hypothetical questions relating to possible hormone therapy, in the event H.V. one day developed gender dysphoria, the Blaises said they could not support hormone treatments based on their sincerely-held religious convictions, but would still be loving and supportive of H.V.

The Department denied the Blaises’ foster care license application, and H.V. remains in non-relative foster care. The Blaises filed a federal action against the Department seeking to enjoin the enforcement of the Department policy as it violated the First and Fourteenth Amendments.

Florida Religion and Family Law

I’ve written about the intersection of religion and divorce – especially as it relates to vaccinations. Religion, religious beliefs, and religious practices are not statutory factors Florida courts consider when determining parental responsibility.

Nor is religion an area in which a parent may be granted ultimate responsibility over a child. Instead, the weight religion plays in custody disputes grew over time in various cases.

That’s because placing restrictions on a parent’s right to expose his or her child to his or her religious beliefs have consistently been overturned in the absence of a clear, affirmative showing that the religious activities at issue will be harmful to the child.

Generally, Florida courts will not stop a parent from practicing their religion or from influencing the religious training of their child inconsistent with that of the other parent.

Eruption

The federal judge found the question in this case was whether Washington’s regulations covertly suppressed religious beliefs. The judge found that in practice, the Department regulations work to burden potential caregivers with sincere religious beliefs yet almost no others.

It also found that the Department’s interpretation of its regulations and policies also favored secular viewpoints over certain religious viewpoints.

For example, the Department favors religious and non-religious applicants who have neutral or pro-LGBTQ+ views over religious and non-religious applicants who have non-neutral or anti-LGBTQ+ views.

The State denied their application because the tenet of the Blaises’ faith flouted the Department’s regulations and policy, and therefore “punished the expression of religious doctrines it believes to be false.”

The Court enjoined the Department from using Policy 6900 against prospective foster parents.

The injunction order is here.

 

You Can’t Post That: Free Speech and Child Custody

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Free Speech and child custody becomes an issue every time someone posts photos of children on social media. Glowing grandparents should be especially careful. That’s because in the European Union, balancing freedom of speech and privacy has become much trickier after a Dutch court ordered a grandma to take down photos of her grandchildren.

Free Speech and Custody

European Union Speech Laws

In the Netherlands, a woman was asked by her daughter to take down pictures of her children from Facebook and Pinterest several times, but she did not respond. The daughter took this little family dispute to court, and asked a judge to stop her.

A judge in the province of Gelderland, in the eastern part of the country, decided that the grandmother was prohibited from posting photos on social media of her three grandchildren without the permission of her daughter, the children’s mother.

The District Court judge said grandma violated Europe’s sweeping internet privacy law, called the General Data Protection Regulation, or G.D.P.R. In the Netherlands, the G.D.P.R. dictates that posting pictures of minors under the age of 16 requires permission from their legal guardians.

The women, whose names were not provided in the court documents, fell out about a year ago and hadn’t been in regular contact, according to filings in the court case. After the children’s mother asked for the pictures to be deleted without the desired effect, she took the case to court.

Publishing the children’s pictures on social media would, according to the mother, seriously violate their privacy.

The Gelderland judge agreed that the grandmother did not have permission to post the pictures under General Data Protection Regulation (GDPR) legislation.

Those rules do not normally apply to the storage of personal data within personal circles such as family. However, in this case, the grandmother had made the photos public without the consent of the mother — who has legal authority over which data of her underage children may be stored and shared.’

Florida Free Speech and Child Custody

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. Currently, grandparents have little to no rights to visitation in Florida.

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.

The Mother was Venezuelan, and because the Father did not speak Spanish, the court 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. She was also bipolar and convicted of two crimes.

The appeals court reversed the restriction. Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy.

Not unlike the new EU law, 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.

As the Windmill Turns

The Dutch court also held that by posting of photographs on social media, the grandmother made them available to a wider audience, the court’s ruling, published earlier this month, explained.

“On Facebook, it cannot be ruled out that placed photos could be distributed and that they may come into the hands of third parties”.

The judge ordered the grandmother must remove the pictures of her grandchildren from Facebook and Pinterest within ten days, the judge ruled. If she does not, she must pay a penalty of €50 ($55) per day that the photos are online, with a maximum penalty of €1,000 ($1,100).

The daughter had asked to impose a penalty of €250 ($275) per day if the photos remained. According to the mother’s statement, publishing the children’s pictures on social media can seriously violate their privacy.

GDPR is the European Union’s data privacy law, which came into effect in 2018. It gives people more control over their personal data and forces companies to make sure the way they collect, process and store data is safe.

The EU’s intention was to achieve a fundamental change in the way companies use data — with its central idea being that people are entitled “privacy by default.” Although EU countries seem to have taken their data protection obligations under the GDPR seriously, their efforts to balance data privacy and freedom of expression have been more uneven.

Many are concerned that the GDPR’s safeguards to protect the right to data privacy may compromise freedom of expression. As the practice of enforcing the GDPR by family members continues to unfolds, many are watching if the EU can balance privacy and freedom of expression.

The CNN article is here.

 

Child Custody and Speech Restrictions

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Divorce can be stressful. Parents going through a high conflict child custody case often say and post things they come to regret. Children are the victims. In order to protect children, courts sometimes order speech restrictions in child custody cases, limiting what a parent can say, and removing posts from social media. That’s when the first amendment comes into play.

Custody Speech Restrictions

Boston Legal

Ronnie Shak and Masha M. Shak were married for about 15 months and had one child together. The mother filed for divorce when the child was one year old and then filed an emergency motion to remove the father from the marital home, citing his aggressive physical behavior, temper, threats, and substance abuse.

A Family Court judge ordered the father to leave the marital home, granted the mother sole custody of the child, and after the mother requested it, prohibited the father from posting disparaging remarks about her and the case on social media:

Neither party shall disparage the other — nor permit any third party to do so — especially when within hearing range of the child. Neither party shall post any comments, solicitations, references or other information regarding this litigation on social media.

The mother then moved for civil contempt alleging that the father violated the first orders by publishing numerous social media posts and commentary disparaging her and detailing the specifics of the divorce on social media. The Father argued this was an unfair prior restraint on his speech.

A second family judge, then modified the order stating:

Until the parties have no common children under the age of [fourteen] years old, neither party shall post on any social media or other Internet medium any disparagement of the other party when such disparagement consists of comments about the party’s morality, parenting of or ability to parent any minor children. Such disparagement specifically includes but is not limited to the following expressions: ‘cunt’, ‘bitch’, ‘whore’, ‘motherfucker’, and other pejoratives involving any gender. The Court acknowledges the impossibility of listing herein all of the opprobrious vitriol and their permutations within the human lexicon.

The Massachusetts Supreme Judicial Court granted direct appellate review.

Florida Child Custody and Speech Restrictions

I’ve written about divorce and speech issues before. How you speak to the other parent and the child, and what you post online, can have a big impact on your child custody case.

In fact, Florida Statutes expressly require a family court judge to consider how each parent protects their child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.

Family courts have a lot of power to protect children in custody cases. Florida courts have to balance a parent’s right of free expression against the state’s interest in assuring the well-being of minor children.

In other words, the court performs a balancing act using the best interests of children, which can be a compelling state interest justifying a restraint of a parent’s right of free speech, as the measure.

Back in the Back Bay

The High Court held the second judge’s additional language still violated the First Amendment. The State has a compelling interest in protecting children from being exposed to disparagement between their parents.

However, as important as it is to protect a child from the emotional and psychological harm that might follow from one parent’s use of vulgar or disparaging words about the other, merely reciting that interest is not enough to satisfy the heavy burden of justifying a prior restraint.

Here, there was never a showing made linking communications by either parent to any grave, imminent harm to the child. As a toddler, the child was too young to be able to either read or to access social media. The concern about potential harm that could occur if the child were to discover the speech in the future is speculative and cannot justify a prior restraint.

The court did list remedies to deal with disparaging speech. For example, a couple can enter non-disparagement agreements voluntarily, a parent may have the option of seeking a harassment prevention order, or sue for intentional infliction of emotional distress or defamation.

Judges, who must determine the best interests of the child, can also make clear to the parties that their behavior, including any disparaging language, will be factored into any subsequent custody determinations.

The Reason article is here.

 

Emergency Child Custody and Good Coronavirus Info

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For one Miami emergency room physician, who was told to decide between her job or her daughter, the coronavirus has been a nightmare. That’s because family judges are having to make emergency child custody decisions – sometimes against our first-responders. There’s also some good coronavirus information.

ER Custody

ER Court

The coronavirus is a global pandemic. State of emergencies have been declared around the country. Currently, there are over 800,000 confirmed cases of COVID-19 in the U.S. and roughly 47,00 deaths according to the Center for Systems Science and Engineering at Johns Hopkins University.

In Miami, an ER doctor had to leave her 5 year old child indefinitely with a man she alleges repeatedly physically beat her during the marriage. Yet, a Miami judge granted the father’s motion to temporarily modify timesharing due to the mother’s heightened exposure to COVID-19 and award her equivalent makeup time when the emergency is lifted.

Due to the mother’s employment as an emergency room physician, this Court is concerned with her exposure to COVID-19 while exercising timesharing with the minor child.

In order to protect the best interests of the minor child, including but not limited to the minor child’s safety and welfare, the Court temporarily suspended her timesharing until further Order of Court. That means the father will exercise 100% timesharing.

The court also ordered that the mother is entitled to equivalent make up timesharing for each day lost as a result of this temporary suspension of timesharing, and to daily Skype, FaceTime, and/or telephonic communication with the minor child.

Florida Child Custody

I’ve written about child custody before – especially as it relates to spanking and punishment. Florida does not use the term “custody” anymore, we have the parenting plan concept. For purposes of establishing a parenting plan, the best interest of the child is the primary consideration.

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. What about emergencies?

Florida courts have long recognized that there can be extraordinary circumstances, and trial courts have to enter emergency temporary orders modifying custody of a child. Sometimes the court has to do so without even giving prior notice to the other side.

However, such an order requires a true emergency situation, such as where a child is threatened with physical harm or is about to be improperly removed from the state.

But trial courts have to make every reasonable effort to allow both parties to be heard before issuing an emergency modification order. When prior notice isn’t possible, an opportunity to be heard should be made as soon thereafter as possible.

If an order doesn’t make such a showing they are consistently overturned unless there is evidence of a sufficient emergency.

The Good Doctor

Back in Miami, the ER doctor’s lawyers argued that if the Court’s ruling stands, the doctor would not be able to see her child until May 31st, when the Courts may reopen and leave this child for 60 consecutive days with the father without any access to the mother.

As the mother argued:

Is she to presume that she will not see her child for an unknown period beyond May 31st? How could this possibly be in the best interest of the minor child? Is it the stance of the Family Court that any medical professional who may come into contact with Covid-19 patients should have their timesharing suspended indefinitely?

An extraordinary writ was filed with the Third District Court of appeal, and temporarily, the doctor will continue to split custody time with her ex-husband after an appeals court ruled in favor of her motion to stay the order while the appellate court continues to decide on the judge’s initial order.

Good Coronavirus Information

While there is no game plan, here’s some information on when we can return to work:

  • Dr. Anthony Fauci, recently predicted a gradual reopening of parts of the country, perhaps starting as soon as May 2020. However, that depends on the virus and mitigation efforts.
  • Reopening the economy will happen gradually, with ongoing monitoring for renewed outbreaks.
  • In the coming weeks, a drop in COVID-19 cases is expected across the US.
  • Once that happens, public health experts and national, state, and local leaders will likely give the go-ahead for employers across many industries to gradually reopen, and employees will return to work.

The NBC Miami article is here.

 

Child Custody and the Constitution and Some Good Coronavirus Information

Posted by Ron Kauffman on with 0 Comment

With state and local officials entering shelter in place orders, many parents feel they are being deprived of their constitutional rights to child custody. What are a parent’s constitutional rights during a global emergency? There’s also some good coronavirus information.

Constituion Child Custody

There is no instruction book for a pandemic

Happy belated Easter to everyone . . . except residents of Louisville, Kentucky! The home of Muhammad Ali, the Kentucky Derby, and Kentucky Fried Chicken is in the news. That’s because on Holy Thursday, Louisville’s mayor, Greg Fischer, criminalized the communal celebration of Easter.

Our nation faces a public health emergency caused by the exponential spread of COVID-19. This has led many state and local officials to order increasingly tighter restrictions to promote social distancing and prevent further spread of COVID-19.

Can the state go too far? One federal court thinks so. Last week Louisville’s mayor said, it was “with a heavy heart” that he was banning religious services, even if congregants remain in their cars during the service. A Louisville church then filed an emergency motion in federal court to enjoin the mayor, and won.

The mayor noted that it’s not really practical or safe to accommodate drive-up church services taking place but drive-through liquor stores are A-OK!

Notwithstanding the exemptions of some drive-through places, on Holy Thursday, the Mayor threatened church members and pastors if they hold a drive-in Easter service.

The federal judge, noting American history on religious bigotry, said the pilgrims fled religious persecution, slave owners flogged slaves for attending prayer meetings, mobs drove the Latter-Day Saints to Utah; hatred against Catholics motivated the Blaine Amendment, and Harvard University created a quota system to limit Jewish students.

The judge then found the Mayor’s decision to be stunning and “beyond all reason,” unconstitutional.

Florida Child Custody and the Constitution

Like religions, the constitution protects parental rights too. I have written about the intersection of the constitution and marital law before. The United States Supreme Court has concluded that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.

Florida courts have long recognized this fundamental parental right. The basic proposition is that parents have a legal right to enjoy the custody, fellowship and companionship of their offspring. This is a rule older than the common law itself.

But the parents’ rights are not absolute, as the state has parens patriae authority to ensure that children receive reasonable medical treatment which is necessary for the preservation of life.

So, in Florida the ultimate welfare of the child itself is controlling. While the parent’s interest in maintaining parental ties is essential, the child’s entitlement to an environment free of harm, physical and emotional violence at the hands of parents and caretakers and for medical treatment necessary for the preservation of life.

Because Florida has a compelling interest in protecting all its citizens—especially its youth—against the clear threat of abuse, neglect and death, the constitutional rights can give way.

Kentucky Fried Liberty

Back in Louisville, the court found the city order was not “neutral” between religious and non-religious conduct because it targeted religious worship by prohibiting drive-in church services, but not drive-through liquor stores.

The court noted that the city was pursuing a compelling interest of the highest order through its efforts to contain the current pandemic, but its actions were not even close to being “narrowly tailored to advance that interest.

The court also found that the church was committed to practicing social distancing in accordance with CDC guidelines. Cars will park six feet apart and all congregants will remain in their cars with windows no more than half open for the entirety of the service.” Its pastor and a videographer will be the only people outside cars, and they will be at a distance from the cars.

There is no instruction book for a pandemic. The threat evolves. Experts reevaluate. And government officials make the best calls they can, based on the best information they have. You may not agree with the court’s reasons, but the judge saw his role to explain, to teach, and to persuade.

Good Coronavirus News

Speaking of the constitution, to stem the spread of COVID-19, many cities have passed executive orders requiring people to cover their mouth and nose when going out.

Face masks (surgical or homemade) are now being required in public, such as when going to drive-through liquor stores. But do homemade masks work? The science with different types of masks is not conclusive, but this graphic is good information anyway:

COVID 19

In theory, all masks may prevent some sprays of virus-laden fluids from entering your nose and mouth (inward protection). They are also a reminder not to touch your face. And, if you’re sick, they may help keep some aerosols inside (outward protection), to protect people around you.

The U.S. District Court order is here.