Category: Child Custody

A Custody Case Goes to the U.S. Supreme Court

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, December 14, 2012.

Many international child 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 the United States and 88 other 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?

Most people don’t know this, but it is extremely rare to have your case heard by the United States Supreme Court. In family law cases, it is even rarer. However, the U.S. Supreme Court agreed to hear a case this term: the appeal of U.S. Army Sergeant Jeff Chafin, whose wife, Lynn, left the U.S. for Scotland with the couple’s daughter after a U.S. district court allowed it.

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

But appellate courts are split on whether to keep jurisdiction or dismiss them as moot. For example, the 4th Circuit in Virginia has ruled that removal of the child did not make the case moot. During oral argument before the U.S. Supreme Court, Chief Justice John Roberts Jr. I think correctly observed:

It seems to me, and I may be taking the opposite position from one of my colleagues, but the — the best thing is to hold things up briefly, so that the child doesn’t go overseas and then have to be brought back, particularly if you have situations where there can be an expeditious appeal.

Big International Custody Case

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, November 2, 2012.

In a big international child child custody case, a court ruled that a child taken by her mother to New York from London may stay in New York, over the objections of the father, and despite the mother and child’s lack of legal immigration status.

In 2009 Ms. Montoya Alvarez and her daughter left London to come to live in New York. On November 10, 2010, the father filed a Petition for Return of Child under Article 2 of the Hague Convention and the International Child Abduction Remedies Act. The father wanted an order that the child be returned to London to have a British court make a custody determination.

The trial court found that the father made a prima facie case of wrongful retention under the Hague Convention. However, the court denied the father’s petition to return the child to London. The mother asserted an affirmative defense under Article 12 of the Hague Convention that the child was “now settled” in New York.

The presumption under the Hague Convention is that a child must be returned to the state from which she originally was wrongfully removed unless: (1) one year has elapsed between the date of wrongful removal and the date proceedings commence; and (2) the child is found to be “now settled in its new environment.”

The father appealed, and argued that the “now settled” defense did not apply because the one-year period in Article 12 should have been tolled until he could have reasonably located his child. He also argued that the child was not settled in New York because the child and mother lacked legal immigration status.

The Second Circuit Court of Appeal held that (1) equitable tolling does not apply to the one-year period in the “now settled” defense and (2) a child’s immigration status should not be given controlling weight in determining whether the child is “now settled.”

The case makes it harder for foreign parents to win an international custody dispute. The Second Circuit’s Lozano v. Alvarez opinion can be read here.

A Movie Review!

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Sunday, September 30, 2012.

As a matrimonial attorney, I don’t much care for movies about child custody cases. I’d seen, but didn’t like, Kramer v. Kramer, Falling Down, and Intolerable Cruelty. I just don’t think custody battles make for good film. Talk to Strangers proved me wrong. You can see the trailer here.

Clients are often surprised to learn that divorce attorneys and judges don’t usually see the children in the divorce process. This means that we sometimes become immune to its impact on children. Talk to Strangers corrects this problem. It looks and feels realistic, shows you the custody evaluation process from the children’s perspective, and comes with a guide for clients. It’s a short, dramatic mockumentary of the custody process meant for its teaching value. Anyone who is involved in the process will learn something, but the movie seems to be aimed primarily at clients.

This is a good movie to watch. First of all, it’s short, coming in at around 25 minutes. Its film locations, a suburban Connecticut home and cold courthouse, make the movie very convincing. The acting is good and professional, especially the brother and older sister, who do a great job portraying the deteriorating relationship with their parents and each other. All the performances are good. In a closing scene, the parents are shown a video of themselves confidently predicting how great their children will do at the end of the process because they are going to work so hard at it. You’ll want to cry.

Tell your clients who have any interest in fighting a tough custody battle to buy this short movie first (it’s probably the cheapest way to settle a custody battle). Oh, and tell them to bring tissues.

Talk to Strangers

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, September 21, 2012.

child custody cases are emotionally draining, and high conflict child custody cases can have a huge impact on children involved. How to lessen the impact of child custody cases on children has been a problem which lawyers, judges and every other professional in the process have long sought.

A Connecticut family lawyer, Deb Grover, who was serving as Chair of the Connecticut Bar Association’s Family Law Section had the idea to create a film to lessen the impact to children. The film is called Talk to Strangers, and was funded by the Connecticut Bar Association, and written by family law specialist Larry Sarezky and produced by Sarezky with Deborah Grover.

From the website:

Talk to Strangers is a fictional portrayal of what happens when parents divorce, and the custody of the children is in dispute. The film family, particularly the children, trudge through the intrusive and lengthy process that leads to a determination of custody. We see them in interviews with family court personnel and observe the tense and painful family interactions that take place.

If you take a minute to watch the trailer for the movie, you quickly see why this film is very different from other videos available on the subject, as it appeals to you on a strong emotional level. The trailer can be viewed here. I just ordered it, and look forward to viewing it, but here’s what others are saying:

“A must-see for parents and counsel involved in this terrible process known as custody litigation.”

– Arthur Balbirer, Esq. – past president American Academy of Matrimonial Lawyers

“…Talk to Strangers, both the film and the pocket guide, are wonderful. The voices of the children speak louder than any educational program…”

– Robin M. Deutsch, Ph.D – Children & the Law Program, Dept. of Psychiatry Massachusetts General Hospital

“This wonderful film… will provide insight and great assistance. Watch it and learn!”

– Alan Dershowitz – Harvard University Professor of Law

Gestational Surrogacy Contracts :-)

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Thursday, September 20, 2012.

According to the Associated Press, on Sept. 19, 1982, the smiley emoticon was invented by professor Scott E. Fahlman, who proposed punctuating humorous computer messages by creating this:

🙂

Which of course led to this

🙂 🙂 :] =] =) :^) :?), and sadly, this 🙁 🙁 :-c :-< :-[ :[ :{

Just as new technologies – such as reproductive technologies – bring new benefits, they can bring new types of child custody cases. Consider this English woman’s concerns reported in the Daily Mail:

A married woman whose husband donated sperm without her knowledge is calling for clinics to be forced to ask for a wife’s consent . . . and says the sperm should be treated as a ‘marital asset’.

Putting aside the question of whether sperm is marital property, Florida does protect surrogacy, and has comprehensive laws protecting the baby, intended parents, the egg donor and the surrogate.

For example, Florida allows commissioning couples to enter gestational surrogacy contracts in which a surrogate relinquishes her parental rights. Gestational surrogacy contracts are reviewed by courts to confirm that they are in accordance with Florida law, and for a birth certificate to be issued. But, problems can arise. Consider a recent Florida case involving lesbian partners:

Two women decided to have a baby, paid a reproductive doctor to withdraw ova from one of them, fertilize them, and implant the fertilized ova into the other partner. The procedure worked, and a child was conceived to a birth mother and a biological mother. Two years later the mothers separated, and the birth mother severed the biological mother’s contact with the child.

If the biological mom is simply an egg donor under Florida law, her parental rights are relinquished. If she isn’t a donor, she’s entitled to parental rights. So, what are the biological mom’s rights? At least in one Florida case, the biological mom was found to be entitled to her parental rights, and did not statutorily relinquish them.

The outcome in that one Florida appellate case may not be followed in other appellate districts, so a consultation with a family law expert is advised.

Do I Need Divorce Therapy?

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Saturday, July 28, 2012.

Negotiating child custody, support, and the division of assets is strongly tied to emotions, and if your head is not in the game – because you are still overcome by swirling emotions – your attempts at settlement may fail. I see this happen frequently: a client, or their spouse, cannot make a rational decision because their anger, sadness or suspicion is too much to overcome. When that happens, the only alternative is to go to court.

You may have heard that therapy can help couples save a marriage. But, did you know more and more people are relying on therapists to help guide them through the grueling process of a divorce? I suggest to clients early on in my representation to seek out a good therapist to help them through the divorce process. They can help you overcome your emotions, as well as create timesharing schedules and more.

I remember reading about Elana Katz, the director of the Family and Divorce Mediation Program at the Ackerman Institute for the Family, in a New York Times article.

We used mediation, so we did not go through the adversarial nightmare and did a lot that set up a structure that was going to make us both highly involved parents. There was not going to be winner-take-all.

Katz discussed how therapy helped her through her own divorce. Let’s face it, if professionals in the business know to hire a good therapist, shouldn’t you? It is important for couples to find post-divorce parenting roles and be able to predict finances. Having a professional therapist go through each stage of the process carefully can help you develop new relationships, and understand future goals.

In Child Custody Cases, Stay-At-Home Dads Are Here to Stay

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Thursday, July 12, 2012.

Parenting Plans, and specifically timesharing, is increasingly more complex as parenting roles reverse. Time magazine reports that the proportion of stay-at-home dads has doubled in the past decade, and not because fathers got laid off and had nothing better to do:

“The percentage of stay-at-home fellas has doubled in the past decade, though it’s still tiny: just 3.4% of stay-at-home parents are fathers. But man, are those guys happy. Perhaps the joy they take in doling out Cheerios and doing loads of baby laundry is merely additional evidence of the inordinate pleasure that men take in parenting, a phenomenon discussed on Thursday on Healthland.”

“It’s clear to us that men strongly identify with this as a role,” says Brad Harrington, executive director of the Boston College Center for Work and Family and lead author of the stay-at-home dads report. “They don’t have a feeling of ambivalence of, What am I doing, I’m a man. There is no sense of angst. These guys strongly identified with being a SAHD. They are proud of it.”