Category: Child Custody

Parental Alienation Warning Signs

Posted by admin on

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?

Posted by admin on

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

Posted by admin on

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?

Posted by admin on

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

Posted by admin on

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

Posted by admin on

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!

Posted by admin on

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

Posted by admin on

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 :-)

Posted by admin on

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?

Posted by admin on

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.