Category: Child Custody

Can Using Legal Marijuana hurt your Custody Case?

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Tuesday, June 17, 2014.

Colorado legalized marijuana for recreational use. 20 states legalized pot for medical treatment. If pot is legal, can it still be a factor in your child custody case?

All drugs in the U.S., are classified into 5 distinct schedules depending upon the drug’s acceptable medical use, and the drug’s abuse or dependency potential.

Schedule I drugs have no currently accepted medical use, have a high potential for abuse, and are considered the most dangerous with potentially severe psychological or physical dependence.

Believe it or not, marijuana is classified under the Controlled Substances Act as a Schedule I drug. Along with heroin and LSD, marijuana is considered one of the most dangerous drugs under federal law.

Although illegal under federal law, what if pot was legal in your state? Could it still be a factor in your custody case? These questions are worth asking because over 20 states have legalized the medical use of marijuana, and it may only be a matter of time before Florida does.

While the legal standard for parental responsibility in Florida is ‘the best interest of the child’ test, maintaining an environment for a child free from substance abuse is a factor courts must consider in determining the best interests of a child.

In Colorado, pot smoking parents fear the legal use of marijuana can still be used to take their children away. Anti-marijuana-legalization parents argue that pot in a home threatens kids.

“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”.

The Colorado Court of Appeals sided with a marijuana-using dad who lost visitation rights though he never used the drug around his daughter. The court reversed a lower court’s decision that the father couldn’t have unsupervised visitation until passing a drug test.

In Florida, we side with federal law, so marijuana use is illegal. However, many other states have legalized it in opposition to federal law. If you are involved in a child custody dispute, legal pot smoking is a very murky area of law to be aware of.

More on the controversy over legal marijuana and child custody can be found in the Washington Post.

Spanking & Custody: Can you lose your children for spanking?

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Thursday, May 29, 2014.

‘Spare the rod spoil the child’ sayeth Proverbs. This week there’s a debate in France to ban spanking. Can you spank without fear of losing child custody or it impacting time-sharing in Florida?

As Radio France Internationale reports, In France, lawmakers are behind a proposed amendment to a wide-ranging family law which is being debated in the French parliament.

One measure of the proposed bill states:

legal guardians cannot use corporal punishment or physical violence against children.

Spanking in Florida

In Florida you’re not supposed to hit your children. Florida has strong laws for the protection against domestic violence.

Domestic violence includes any assault, battery or any other offense resulting in physical injury of a family member by another family member.

However, parents have to discipline their children, and as the good book says, he who loves his child is careful to discipline him. In Florida, parents have a right to discipline their child in a reasonable manner.

A parent’s right to administer reasonable corporal punishment to discipline a child is not a crime when it does not result in harm to the child.

Harm, by the way, does not mean just bruises or welts for instance. Harm also means that the discipline is likely to result in physical injury, mental injury, or emotional injury. Even if you don’t physically harm a child, your actions could be criminal.

Florida’s parental privilege to use corporal discipline does not give absolute immunity either. Your run-of-the-mill spanking may be protected from charges of child abuse, but punching your child, pushing him onto the floor and kicking him is not.

So, is it open season on kids? Hardly. Guardians and judges are analyzing you, and you don’t want to start off your custody case explaining why you beat your kids. The excuse: “this fellow does what the bible says” will not score a lot of points in a courtroom.

Besides, some studies suggest that time-outs work just as well as spanking for immediate punishment, and that for long-term effectiveness, spanking decreases compliance. Worse, spanking may increase child aggression.

While there are some limited privileges for discipline, there are major risks to your custody case, your criminal defense case, and most importantly, to your children.

The front page of the Miami Herald is usually filled with horrible stories each week on child abuse. As a society, we are constantly searching for ways to protect children from abuse. Besides, the results of spanking may be counterproductive.

The RFI report on spanking in France can be read here.

Custody Evaluation Tips: Education

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Wednesday, April 9, 2014.

Everyone knows parent involvement at school means better grades and test scores. However, this conventional wisdom may be wrong. Yet school involvement is a factor in child custody cases. In light of new research, this factor may no longer be useful.

In developing a parenting plan, courts look to a parent’s knowledge and capacity to be informed about your kid’s teachers, activities, and your ability to provide consistent routines, discipline, and making sure homework and projects are done.

Although this is a routine factor in creating a parenting plan, researchers at the University of Texas and Duke University have found that this hallmark of parental involvement doesn’t affect academic achievement.

Researchers examined about 30 years of surveys, and tracked 63 different measures of parental participation in education. The researchers indexed these measures to children’s academic performance, including test scores in reading and math.

What they found surprised them. Most measurable forms of parental involvement seem to yield few academic dividends for kids, or even to backfire. Worse, evidence shows that in middle school, parental help with homework can bring test scores down!

So what does help?

– Reading aloud to young kids

– Talking with teenagers about college plans.

– Embedding your children in social settings in which they meet many college-educated adults with interesting careers.

– Communicating the value of education.

– Teaching your children to ask critical questions.

– Getting your kid in the class of a teacher with a good reputation.

Don’t get confused by the new research. Parents involved in schools can be effective at getting Smartboards, better textbooks, new playgrounds, and other “extras” that make a school come to life.

Parental involvement in children’s lives is essential, and is also a factor courts look to in crafting parenting plans and timesharing schedules. This new research is helping parents to learn what works best.

You can read more about the latest research in the Atlantic.

Right of First Refusal in Custody Cases

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, January 10, 2014.

Sometimes a parent has to miss out on time with the children. It’s not that mom or dad is neglectful, just that life sometimes intervenes: the boss wants mom to work late, or dad has an exam. Are you required to ask your Ex-spouse to care for the kids first, or can you get a babysitter or family member to fill in? The Right of First Refusal answers that question.

It is never easy to divide timesharing in a child child custody dispute, especially when you can’t be there for your own child. Do you have to allow your Ex first dibs?

The right of first refusal requires that one parent first offer the other parent the opportunity to look after the children before hiring a babysitter or asking another person to care for the children.

The right of first refusal can come up when you’ve planned to be out of town, or in last-minute situations. The other parent may be able to take the kids for that weekend or night, and you can make up the difference later.

If the other parent can’t pick up the slack, then a babysitter, family member or even a friend can fill in. The right of first refusal can apply to time periods of an hour, to days depending on your agreement.

The right of first refusal maximizes a parent’s time with their kids. I’ve also found that when there is a right of first refusal, the parents are more likely to communicate with each other, and hopefully eliminate some of the anger between parents.

Illinois is about to enact a law requiring the right of first refusal. Effective January 14, 2014, the new Illinois statute 602.3 will require that:

If it is in the best interest of the child, both parties shall have the right of first refusal to care for the minor children if the absence of either party is necessary for a period of 4 hours or longer. That parent shall first offer the other parent an opportunity for additional time with the children before making other arrangements for the temporary care of the children.

The new statute contains provisions concerning distance, transportation, and time constraints. It also requires a parent to notify the other parent of the duration of the parenting time or temporary care of the children by other persons. And contains requirements regarding the offering and acceptance of additional parenting time.

Florida does not have a statute requiring the right of first refusal. Reading through the Illinois statute, I wonder whether this will become an issue for Florida’s legislature will pick up.

Timesharing is based primarily on the “best interests” of a child. Should the right of first refusal be regarded as in the best interest of absent a showing of impracticability or harm to a child?

The statute can be read here.

Custody, Infants, Breastfeeding & the Tender Years Doctrine

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Monday, December 16, 2013.

How are child custody cases handled for babies still breastfeeding? Florida used to follow the “tender years” doctrine which held: mothers of infants of tender years are best fitted to bestow motherly affection, care, companionship, and early training. Florida abolished the “tender years” doctrine. But it’s interesting to see countries going through the modernization of their custody laws.

In Israel for instance, the current law automatically grants custody of children under 6 to the mother unless there are special reasons not to.

For practical purposes, this meant mothers always got custody because after age six, custody was never reconsidered, so as not to disturb the lifestyle to which the children had grown accustomed.

As the Jerusalem Post reports:

Since the Schnitt Committee recommended eliminating the tender years clause altogether in 2008, judges already started granting joint custody for children under six.

The bill recommends declaring both parents legally responsible for their children and guarantees the rights of the children to a relationship with both their parents.

With infants who are breastfeeding, there are a few solutions. The mother could pump and provide enough breast milk to get through the timesharing.

If pumping is not the solution, you may have to consult experts to resolve the conflict over whether the public recognition of the health benefits of breastfeeding is best for the child, and if so, does it outweigh the benefits of early father-child bonding.

This is not a slam dunk case for either party. Although the public health benefits of breastfeeding are real, there is a good chance that all of the lawyers and the judge deciding your case were themselves formula fed with no long term harmful consequences.

Custody and Vaccinations: Can you lose a child by not vaccinating?

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, November 15, 2013.

Julia Ioffe, a senior editor at the New Republic, has the whooping cough and is not pleased. We conquered whooping cough along with the Nazis in the 1940s. Why is it back? What does it have to do with child custody?

Some parents decline immunization as a tenet of their religious beliefs. Some parents fear the risk of serious reactions to vaccines, and some think chemicals in vaccines cause autism.

When Jacob Holmes was 1, his pediatrician administered the MMR II vaccine. 9 days later he experienced seizures. 6 months later he was dead.

Extremely contagious whooping cough was conquered by a vaccine invented in the 1940s. Yet, in 2010 a whooping cough outbreak killed 10 babies in California. Studies show that children who did not get vaccinated contributed to the California outbreak.

The decision not to vaccinate can have a big impact in society:

  • In 2012, there were 48,277 reported cases of whooping cough, the highest since 1955.
  • Texas is currently fighting a whooping cough epidemic.
  • Washington State experienced a whooping cough epidemic in 2012

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 cases in Florida.

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

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 decisions regarding the minor child’s vaccinations.

The decision to vaccinate 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.

Parental Alienation Warning Signs

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, August 2, 2013.

During a contested divorce involving child custody or parenting plan, it is common for parents to accuse each other of manipulating the children to criticize and complain about the other parent, and even to destroy a parent’s relationship with the children.

We call it Parental Alienation Syndrome, and it is very common during a heated divorce for a parent to use the children in the war against the other parent.

The danger of parental alienation is that the kids need to show affection for their parents, and need to receive affection back from both parents. But when one parent convinces a child to think the other parent is breaking up the family, or is the enemy who should be hated and disrespected, the parent child relationship is undermined.

  • Here are some signs of Parental Alienation Syndrome to watch out for:
  • Bad-mouthing the other parent to the children
  • Limiting contact
  • Erasing the parent from the children’s lives
  • Forcing the children to reject the other parent
  • Forcing the children to choose sides
  • Creating the impression the other parent is dangerous
  • Belittling comments to the other parent in front of the children
  • Calling the children to testify against the other parent
  • Convincing the children the other parent is creating financial hardship on the family

Hopefully you will be spared this common syndrome in divorce. There is plenty of research showing that parental alienation can not only cause emotional scars in kids, but has also been seen as a cause of low self-esteem, self-hatred, depression and substance abuse in children.

If you spot any of these signs, it is important to speak to a professinal about your concerns.

Can A Divorce Court Block Facebook Contact with your Kids?

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, April 12, 2013.

child custody proceedings can bring out the worst in people. I wrote an article, published in the Florida Bar Family Law Section Commentator, on the use of Facebook in divorce trials. Recently, an appellate court in Georgia upheld a trial order prohibiting parents from interacting and contacting their children through Facebook. Essentially, a court blocked posting on their Facebook accounts.

The Georgia divorce case of Lacy v. Lacy shows the conflict between our First Amendment rights to free speech and a court’s authority in child custody cases to protect children from the harmful comments and actions of their parents going through a bitter divorce dispute.

In the high conflict custody Lacy case, a trial judge prohibited the father from having any contact with his children. Specifically, the judge entered an order which:

“restrained and enjoined [the parties] from posting matters about each other or their current litigation on Facebook or other social networking sites.”

The appellate court allowed the Facebook injunction to stand, essentially disabling or blocking Mr. Lacy’s account. The appellate court found that Georgia courts had previously required parties in divorce proceedings: “to refrain from making derogatory remarks about the other before the children.”

Additionally, Georgia courts have previously found parents in contempt of court for violating court orders restraining telephone calls to the other spouse’s workplace. To the Lacy appellate court, retricting Facebook communication was not such a stretch from previous Georgia decisions.

There are three good lessons to be learned from Lacy v. Lacy.

First, the courts can prohibit you from using electronic communications in a way which can harm children. If parents in a divorce are discussing their divorce proceedings, and making derogatory and disparaging comments about each other on Facebook, there is now authority for a court to stop that kind of conduct whether it is by telephone or Facebook.

Second, posting derogatory comments about your family members on Facebook can hurt your family.

And third, it’s never a good idea to anger the judges about to decide your case. You know you’re your appeal is in trouble when the first finding of fact by the appellate court is:

“As an initial matter, we note that the father’s briefs are rife with discourteous and disparaging comments regarding the Ocmulgee Circuit judiciary in general . . . “

The U.S. Supreme Court Decides The Chafin Custody Case

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Wednesday, February 20, 2013.

Child custody cases are governed by the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. The Hague Convention is a treaty signed by 89 members. It protects children from abduction across international lines by providing a procedure to quickly return them. But after the child has been returned, how does a parent appeal if they think the trial court got it wrong?

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

Yesterday, the U.S. Supreme Court vacated the 11th Circuit court. In an opinion by Chief Justice John Roberts Jr. the Supreme Court held:

If these cases were to become moot upon return, courts would be more likely to grant stays as a matter of course, to prevent the loss of any right to appeal. In cases in which a stay would not be granted . . . a child would lose precious months when she could have been readjusting to life in her country of habitual residence, even though the appeal had little chance of success. Such routine stays due to mootness would be likely but would conflict with the Convention’s mandate of prompt return to a child’s country of habitual residence. Routine stays could also increase the number of appeals. Currently, only about 15% of Hague Convention cases are appealed.

If losing parents were effectively guaranteed a stay, it seems likely that more would appeal, a scenario that would undermine the goal of prompt return and the best interests of children who should in fact be returned. A mootness holding here might also encourage flight in future Hague Convention cases, as prevailing parents try to flee the jurisdiction to moot the case. In every case under the Hague Convention, the well-being of a child is at stake; application of the traditional stay factors ensures that each case will receive the individualized treatment necessary for appropriate consideration of the child’s best interests.

The whole opinion can be read here.

When Men Get Pregnant Who Gets Custody?

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

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

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

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

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

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