Category: Child Custody

Do Rapists Have Child Custody Rights

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, March 20, 2015.

In 31 states, a man who impregnates a woman through rape can sue her for child custody and timesharing rights. There are bills pending in Ohio and Pennsylvania addressing that issue.

According to an NPR radio station in Pittsburgh, Pennsylvania State Senator Randy Vulakovich and Representative Joe Hackett are introducing the Rape Survivor Child Custody and Support Act in the Senate and House, respectively.

Under there bill, courts have the authority to terminate the parental rights of a father or mother convicted rapist. But at the same time, the rapist’s obligation to pay child support will remain.

I’ve written before about rape and custody. The issue of consent is important to the crime of rape, but is irrelevant in a civil action to determine paternity and child support.

Each year, there are approximately 32,000 pregnancies resulting from rape, according to a 1996 study by the American Journal of Obstetrics and Gynecology.

Vulakovich says his bill will close a loophole in the law that is damaging to sexual assault survivors.

“If a victim of a rape decides to keep a child who was conceived because of the result of a rape, she could be forced under state law to constantly interact with a rapist on a regular basis if he demands visitation rights.”

Currently in Pennsylvania, a rapist’s parental rights are only terminated pending adoption of the child, in which case the offender is no longer required to pay child support.

“We’ve had calls from women who are exasperated,” Houser said. “The callers will feel like…’I’ve done everything right, I’ve done all the things I was supposed to do, and now I find out that he’s petitioning for visitation.'”

According to the most recent data, a 1996 study by the American Journal of Obstetrics and Gynecology, approximately 320,000 women become pregnant as a result of rape. However, roughly one third of those pregnancies are terminated.

Houser says there are no clear statistics on pregnancy from rape in Pennsylvania. She also said few rapists try to pursue their visitation rights. State courts have the power to prevent unfit parents from claiming their visitation rights for several reasons, including crimes against the other parent.

“This isn’t necessarily the result of egregious things happening on a regular basis here in Pennsylvania,” Houser said, “but it doesn’t matter if it’s happening to a lot of people or just a few. It shouldn’t be happening at all.”

Without such a law, woman can endure years of being tormented by an abuser,” said Rep. Debbie Wasserman Schultz, D-Florida.

The article is here.

Mickey, Measles & Custody

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Wednesday, February 4, 2015.

The recent outbreak at Disneyland has resulted in more measles cases in one month than the typical number in a year, and has spread it to 14 states. This highlights the link between vaccinating children and custody.

Because of the return of vaccine preventable diseases – some of which were eliminated decades ago – a national discussion is occurring about vaccinating children.

But can the refusal to vaccinate impact your custody case?

I’ve blogged about vaccines before, not vaccinating a child can be detrimental:

– Contracting measles or whooping cough is harmful to a child.

– Public health and school officials send unvaccinated children home from school during outbreaks.

– Unvaccinated children are barred from birthday parties and play dates.

Why do a minority of parents not vaccinate? One reason is fear of autism. The anti-vaccination hysteria can be traced back to a paper by Andrew Wakefield published in the disgraced British medical journal The Lancet.

Wakefield claimed the measles-mumps-rubella (MMR) vaccine was linked to autism. His study was later deemed “fraudulent” and Wakefield was stripped of his medical license.

But the damage was done. MMR vaccination rates declined and California officials have recently determined that the vast majority of those infected never received the MMR vaccine.

The minority of children who are not vaccinated have a big impact. The concept is called herd immunity. If vaccination rates are high, vaccinated people act as a barrier and reduce the risk of infection for people who can’t be immunized.

In Florida, there are two leading cases in which the issue over custody and vaccination was brought to trial and appeal. My new article briefly examines Florida’s parental responsibility statute, including the concept of ultimate authority.

The two Florida cases in which the decision to vaccinate a child was an issue brought to trial is also discussed, and the article traces the development of religion as a factor in parental responsibility cases in Florida.

The article can be read here.

Whooping Cough and Custody

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Wednesday, December 17, 2014.

California just announced a pertussis (whooping cough) epidemic. The overall incidence has increased as more people apply for vaccine exemptions. I have a new article on vaccination disputes in child custody cases.

A total of 9,935 cases were recently reported to the California Department of Public Health, the highest number in 70 years. Already, one infant has died from the disease, and cases are reported in schools across the state.

The California Department of Public Health recommends the pertussis vaccine (Tdap), but many parents object to vaccinations. Some objectors assert their individual liberties. Some parents are risk averse to the potential impact of vaccinations. Celebrity anti-vaccination campaigns confuse many, and some parents hold deep religious beliefs against immunization.

Religion is not an express factor for courts to consider in Florida custody cases. It is interesting how courts balance the highly sensitive issues of custody and religion.

There are two vaccination cases in Florida, and the facts in each were very similar. In both cases, the parents shared custody. Both involved chiropractors involved in their children’s health care. And, in both cases the health care professional parent opposed vaccinations. Surprisingly, the judgment in the two cases came out differently.

My new article briefly examines Florida’s parental responsibility statute, including the concept of ultimate authority, the two Florida cases in which the decision to vaccinate a child was an issue brought to trial, and traces the development of religion as a factor in parental responsibility cases in Florida.

The new article can be read here.

Measles, Mumps and Custody

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Thursday, December 4, 2014.

Dr. Haider Warraich wrote an opinion piece in today’s Wall Street Journal about a young girl admitted to his hospital with an illness no one could diagnose. What was the illness, and what does it have to do with divorce?

It turns out the mysterious illness was measles. U.S. measles cases hit a 17-year high in 2013 after being eliminated from the country in 2000, thanks to a combination of religious-inspired objections and the spread of vaccine-related conspiracies.

Some parents decline vaccinations as a tenet of their religious beliefs. Other parents fear the risk of serious reactions to vaccines, and some follow the latest Hollywood fad claiming that vaccines cause autism.

I’ve blogged about the interplay of vaccinations and custody before, and I have a new article in the winter edition of the Florida Bar Family Law Section’s Commentator.

Your decision not to vaccinate can also impact your divorce case. In Florida, a court can carve out an exception to shared parental responsibility, giving one parent “ultimate authority” to make decisions.

There are at least two reported decisions in Florida discussing vaccinations and shared parental responsibility. However, the two courts reached different results.

In one case, a Florida court heard the arguments on child immunization, and decided that it would be in the child’s best interest to allow the anti-vaccination Mother to make the ultimate decision.

Ten years later, a different Florida court heard conflicting testimony, and decided it was in the child’s best interest to award the pro-vaccination Father ultimate responsibility to make the final decision.

The decision not to vaccinate your child can have a big impact in society, as the recent measles case proves. The decision not to vaccinate also raises interesting family law issues.

It is important to know what your rights and responsibilities are in Florida, especially when there are conflicting Florida court decisions about whether vaccinations are in your child’s best interest.

Dr. Warraich’s opinion piece in today’s Wall Street Journal can be read here. (Subscriber’s only)

My New Article on Vaccinations and Custody

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Tuesday, November 11, 2014.

Every school year, some parents argue over whether to immunize their children. I have a new article just published in the Florida Bar Commentator on how courts review vaccination disputes in custody cases. Here is an abstract.

There are a few reasons parents object to vaccinations. A few objectors assert their individual liberties. This happened in one of the earliest vaccination decisions in our country’s history after Cambridge, Massachusetts required smallpox vaccinations.

Others parents are risk averse to the potential impact of vaccinations. After all, vaccinations can be injections of weakened organisms to produce immunity in humans. Sometimes, things go wrong, and we established the National Vaccine Injury Compensation Program to compensate for vaccine-related injuries or deaths.

Celebrity anti-vaccination campaigns confuse many. People have noticed the irony of Jenny McCarthy speaking out against immunizing children against infectious diseases, yet actively promoting nicotine inhalers for a ‘Big Tobacco’ company, which are increasingly used by middle school and high school aged children.

Primarily though, parents objecting to vaccinations hold deep religious beliefs against immunization. Religion is not an express factor for courts to consider in Florida custody cases. It is interesting how courts balance the highly sensitive issues of custody and religion.

There are two vaccination cases in Florida, and the facts in each were very similar. In both cases, the parents shared custody. Both involved chiropractors involved in their children’s health care. And, in both cases the health care professional parent opposed vaccinations. Surprisingly, the judgment in the two cases came out differently.

The article briefly examines Florida’s parental responsibility statute, including the concept of ultimate authority, the two Florida cases in which the decision to vaccinate a child was an issue brought to trial, and traces the development of religion as a factor in parental responsibility cases in Florida.

The new article can be read here.

Custody and Courtroom Demeanor

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Monday, October 13, 2014.

How you speak, dress and act can impact the outcome in a child custody case. Judges use their intuition to size up a witness. Being aware of that can be critical.

For one mother who lost custody, the judge’s perception of her credibility seemed to have been the key issue in her case. I’ve written about courtroom etiquette before.

In the New York case, the Mother testified that she met the Father during an interview at Best Buy. They engaged in conversation which led to discussion of their common interests including music .

He flirted with her and during her training, overheard her conversation about her sexual preference, stating that if she dated the proper person her “lesbian problem would be fixed.”

He invited her to his birthday dinner, and later to his home to record music, had a drink and talked about her sex life.

She spent the night and the following day. The next night he asked to perform oral sex on her again and she agreed. Then he tried to penetrate her and she tensed up and hesitated.She testified she laid there and cried.

She testified that she did not want someone who raped her to be a part of the child’s life. During the hearing, she also testified that he was a “good guy” and a mentor to her.

The Judge, considering the Mother’s inconsistent testimony and demeanor. He did not find her testimony credible. In speaking of the alleged rape, she often smiled and laughed; showing a lack of seriousness for the situation at hand.

The Mother’s contradicting testimony and actions indicate, that if awarded sole custody, she would not be able to promote or foster a positive relationship between the father and the child which would be extremely harmful to the child’s well-being and contrary to her best interest.

When testifying, consider the solemnity of the courtroom, and understand that judges are listening and watching you carefully to determine your demeanor and honesty. The case can be read here.

Homeschooling and Child Custody

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Wednesday, August 20, 2014.

Joint child custody, or shared parental responsibility, is frequently ordered in Florida, and requires parents to jointly make decisions. What happens if parents disagree about where their children should go to school?

Issues relating to 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 a child.

Determining the best interests of a child in Florida is not entirely subjective, but based on an evaluation of statutory factors affecting the interests and the circumstances of the child’s family.

Courts should limit themselves to the statutory factors, but judges – like the rest of us – have their own biases. This is frequently seen in cases against homeschooling.

A new case out of Kansas about homeschooling, and reported by The Volokh Conspiracy, shows this bias.

In the Kansas case, the trial judge ruled:

” . . . I’m granting primary custody to Mr. Rocha for a number of reasons, one of which is . . . he appears to understand that the benefits of education aren’t just what you learn, it’s – the socialization and interaction with other students, which are important, that cannot be achieved by homeschooling.” The judge added “that [the mother] is educating the girls for the Fifteenth Century, not the Twenty First Century.”

Did you catch that flicker of bias in the judge’s ruling comparing homeschooling to an education for the 15th Century? The appeals court disagreed:

The trial court’s statements that socialization and interaction with other students cannot be achieved by homeschooling are unsupported. . . There is no evidence to support the trial court’s homeschooling comments in this case.

The court of appeals upheld the trial court’s decision to award the primary custody to the Father, even though it disagreed with the homeschool ruling.

The appellate court also noted a Pennsylvania case which weighed educational decisions on a “case-by-case” basis, and used the best interests of the child standard.

There is no Florida case on point, but the Pennsylvania case and the recent Kansas case are probably the correct approach.

One thing to avoid is allowing family court judges to rely on their feelings of whether homeschooling is better or worse for children. A judge has to base the decision on substantial and competent evidence in the record.

The Volokh Conspiracy post is here. The Kansas case is here.

Legal Marijuana and Custody

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Monday, August 4, 2014.

A man lost child custody after getting a medical marijuana card. A couple has their child taken for growing medical marijuana. Police visit a home after a 9-year-old tells his teacher about his mother’s hemp advocacy.

As the News Journal, Delaware online, reports these cases were eventually decided in favor of the parents, but the incidents show a growing dilemma: possession of legalized marijuana in a state can become evidence in child custody or child abuse case.

I’ve written about this problem before. No data exist to show how often marijuana use comes up in custody disputes, or how often child welfare workers intervene in homes where marijuana is used.

But in dozens of interviews, the consensus is clear: marijuana’s growing acceptance is complicating the task of determining when kids are in danger.

Colorado considers marijuana use legal, but it is still listed as a Schedule I controlled substance, like heroin, under federal law. As a result, when it comes to defining a drug-endangered child, marijuana can’t legally be in a home where children reside.

Colorado lawmakers abandoned the effort to address this problem as too complicated. Among the teary-eyed moms at the hearing was Moriah Barnhart, who moved to the Denver area from Tampa in search of a cannabis-based treatment for a daughter with brain cancer.

“We moved here across the country so we wouldn’t be criminals. But all it takes is one neighbor not approving of what we’re doing, one police officer who doesn’t understand, and the law says I’m a child abuser,” Barnhart said.

“There are people who are very reckless with what they’re doing, leaving marijuana brownies on the coffee table or doing hash oil extraction that might blow the place up. Too often with law enforcement, they’re just looking at the legality of the behavior and not how it is affecting the children,” said Jim Gerhardt of the Colorado Drug Investigators Association, which supported the bill.

Colorado courts are wading into the question of when adult marijuana use endangers kids. The state Court of Appeals in 2010 sided with a marijuana-using dad who lost visitation rights though he never used the drug around his daughter.

The court reversed a county court’s decision that the father couldn’t have unsupervised visitation until passing a drug test, saying that a parent’s marijuana use when away from his or her children doesn’t suggest any risk of child harm.

This could hit us soon. The Florida Right to Medical Marijuana Initiative, Amendment 2 is on the November 4, 2014 ballot in the state of Florida as an initiated constitutional amendment.

Circumcision and Custody

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Thursday, July 3, 2014.

Let’s cut to the chase here: some people want their child circumcised, others don’t. In child custody cases, what happens when parents disagree? A Florida court is considering that issue.

3000-year old Egyptian hieroglyph

A recent case was started in Palm Beach County, and involves a 3-year old. A written agreement between the parents requires his circumcision. The father still wants this done, but the mother’s enthusiasm has gone flaccid, and she wants to chop up the agreement.

The Mother, Heather Hironimus, agreed with the Father, Dennis Nebus, to circumcise their child. Now Hironimus has told Nebus she doesn’t want their child exposed to general anesthesia, “for fear of death”! The Mother’s attorney, Sinatra, argued the best interest of the child trumps the agreement.* The mother lost.

*These are their real names.

At issue is a parenting agreement Nebus and Hironimus signed and filed in court, which stipulates that their son would be circumcised under arrangements made by the father. The parents never married.

Her complaint is no longer limited to the risks of anesthesia, now the Mother is seeking the support of Intactivists, a group which opposes circumcision. She is fundraising for help with her legal fees:

I am pleading with fellow intactavists, parents and all others to help me save my son, his foreskin, his rights . . . from allowing the ‘system’ to make these decisions. Please help me help my son!!

The case came to a head in Palm Beach, after a judge ruled the circumcision could proceed. The judge required the Mother to facilitate the circumcision and that she “not in any way lead [the child] to believe that she is or was opposed to his being circumcised, whether or not she accompanies [the child] to the procedure.”

The Mother appealed to the Fourth District. The appellate court issued a stay of the trial court order. Now the circumcision must wait.

While this is a novel case in Florida, the Oregon Supreme Court handled something similar. In Oregon, the Supreme Court concluded that decisions to have a circumcision are unfettered by a noncustodial parent’s concerns or beliefs. However, by age 12, the child’s preference is necessary to the determination.

Florida has different family laws, we don’t have primary and secondary parents for instance. And, unless there is a provision for sole parental decision making or ultimate authority, the parents are going to need to agree. If the parents can’t agree, they have to come to court for a resolution. This is a case to keep an eye on.

More information on the Palm Beach circumcision case can be found here.

Custody and Vaccination: New Case in New York City

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Monday, June 30, 2014.

Florida allows exemptions from vaccinating your child if it conflicts with your religious beliefs. Could a court bar your child from school if legally unvaccinated?

New York just decided that case. As the New York Times reports:

A federal judge recently upheld New York City’s policy, which bars unvaccinated children from public schools when another student has a vaccine-preventable disease.

Two of the families in the New York lawsuit – who had received religious exemptions – challenged the city’s policy on barring their children, saying it amounted to a violation of their right to religious freedom equal protection.

“Disease is pestilence and pestilence is from the devil. The devil is germs and disease, which is cancer and any of those things that can take you down. But if you trust in the Lord, these things cannot come near you.

In rejecting the religious argument, the federal judge cited to the U.S. Supreme Court case of Jacobson v. Mass 1905, which found that Cambridge, Massachusetts’ compulsory vaccinations for smallpox was a lawful exercise of police powers.

The U.S. District Judge wrote that the U.S. Supreme Court strongly suggested:

religious objectors are not constitutionally exempt from vaccinations.

There are major concerns recently by public health officials that some defeated diseases are experiencing a resurgence in areas with low vaccination rates.

The religious families’ lawyer, in criticizing the decision, said that the 1905 case should not be relevant because:

there’s no way the 1905 Supreme Court anticipated that children would be subjected to the vaccines they must get today.

Though New York City schools have an overall immunization rate around 97%, 37 private schools were below 70%.

I’ve written about custody and vaccinations before. Health experts believe that above a certain immunization percentage rate, outbreaks are limited because a disease cannot spread to enough people, a phenomenon known as “herd immunity.”

Widespread vaccinations have practically eliminated certain highly contagious diseases, which used to plague the United States.

Now however, there were 477 measles cases reported this year, the worst year-to-date count since 1994, according to the Centers for Disease Control and Prevention.

“Diseases have a way of finding our vulnerabilities, the kinks in our armor.”

The New York Times article can be read here.