Category: Child Custody

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.

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.