Category: Child Custody

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.

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.