Category: Child Custody

Calling a Stepparent Dad

Posted by Ron Kauffman on March 13, 2023

An important aspect of child custody arises when families reorganize, and whether it is okay for a child to start calling a stepparent “dad” and “mom”. In a recent Pennsylvania case the issue was whether a family judge can order the Child to only call her biological parents “Dad” and “Mom”.

Stepparent Name

Name Calling

A Mother and Father were married in 2012, welcomed their first and only child O.K. in 2013, and then separated five years later. Mother was a client assistant and later a stay-at-home Mom. She re-married her new husband, (the Stepfather), with whom she has two children.

In 2018, the couple agreed to a week-on/week-off shared custody schedule that continued until 2020, when the family court reduced the Father’s timesharing to the first, second, and fourth full weekends of each month during the school year.

In 2021 the Father tried to modify custody and return to a week-on/week-off shared physical custody schedule and sole legal custody as to educational decision-making.

At the modification trial, the Mother testified to having the Child baptized without notifying Father and contrary to his known wishes, and that she would not discourage the Child from calling Stepfather “dad” or “daddy”. The family judge found Mother’s actions were part of a pattern of to diminish Father’s place and authority in the Child’s life.

The family judge modified custody and returned the parties to a week-on/week-off physical custody schedule, denied the Father’s request for sole legal custody concerning educational decision-making, and importantly, held the Mother in contempt.

Mother moved to reconsider, asking the court to vacate the provisions compelling co-parent counseling and requiring the parties to correct the Child’s use of names like “Mom” and “Dad” for the parties’ significant others.

The trial court then granted Father limited sole legal custody to make medical decisions as to whether the Child receives the COVID-19 vaccination and any subsequent boosters of that vaccine and denied Mother’s emergency motion for reconsideration and injunctive relief. The Mother appealed.

Florida Parental Responsibility and Stepparents

I’ve written about parental responsibility in Florida before. In Florida, “custody” is a concept we have done away with. Florida uses the parental responsibility concept. Generally, shared parental responsibility is a relationship ordered by a court in which both parents retain their full parental rights and responsibilities.

Under shared parental responsibility, parents are required to confer with each other and jointly make major decisions affecting the welfare of their child. In Florida, shared parental responsibility is the preferred relationship between parents when a marriage or a relationship ends. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

At the trial, the test applied is the best interests of the child. Determining the best interests of a child is no longer entirely subjective. Instead, the decision is based on an evaluation of certain factors affecting the welfare and interests of the child and the circumstances of the child’s family.

A stepparent does not acquire all of the rights or assume all of the obligations of a child’s natural parent in Florida. Stepparents have the difficult task of raising a child that is not biologically or legally their own. Sometimes, stepparents are responsible for providing love, financial support, and supervision when there is an absentee natural parent. When a stepparent remarries and wants to have legal rights in connection with the spouse’s child, adoption is the right path.

The Constitution and Names

On appeal, the Mother argued it was wrong to restrict the child to referring only to her biological parents and “dad” or “mom” in that it violated the Child’s First Amendment right to freedom of speech.

In custody matters, the paramount concern is the best interest of the child involved. However, in cases raising First Amendment issues, a court has to examine the record to make sure the judgment does not violate free expression.

Generally, content-based restrictions on speech are presumptively unconstitutional and are subject to strict scrutiny. Strict scrutiny requires the government to prove the restrictions are narrowly tailored to serve a compelling state interest.

While a state has an interest in protecting the physical and mental health of a child, that interest is not triggered unless a court finds that the restricted speech caused or will cause harm to a child’s welfare.

The family judge ordered:

“The parties shall not encourage the Child to refer to anyone other than the parties as Mother, Mom, Father, Dad, [et cetera.] In the event the Child refers to a party’s spouse or significant other in such a way, that party shall correct the Child.”

The court restricted the Child’s use of the terms “Mom,” “Dad,” to the Child’s biological parents. Accordingly, the order was a content-based restriction subject to strict scrutiny.

Father testified that the Child is calling Stepfather “Dad” or “Daddy,” a term that applied only to Father during the Child’s first five years of life – years during which Father testified he was the Child’s “stay-at-home Dad.”

Mother testified that it is “unreasonable” to expect the Child, at age 8, to call Stepfather by a name different from what her two younger half-siblings will use in the future.

The court held it was unreasonable for Mother to expect that Father share the title “Dad” with Stepfather, in light of evidence that Mother has acted to diminish Father’s role in the Child’s life, such as leaving him in the dark regarding a baptism.

The family judge’s imposing a restriction on the Child’s speech, did so in an attempt to further the state interest in protecting the Child’s mental and psychological well-being by maintaining and strengthening the strained relationship between Child and Father.

However, the restrictions were not narrowly tailored to further the state’s compelling interest without a finding by that the use of the term “Dad” or “Daddy” to refer to Stepfather caused harm or will cause harm to the Child.

Indeed, the text of the trial court’s order suggests that the trial court was concerned that the parents’ mutual ill-will and mistrust may have cultivated unhealthy bonds between the parents and the Child, not that the terms the Child used to refer to her parents and stepparents were central to that process.

Without a finding that the Child’s use of the terms “Dad” and “Daddy” to refer to Stepfather posed a tangible risk of harm to the Child, the appellate court was constrained to vacate the content-based restriction.

The opinion is here.

Pet Custody in Tennessee

Posted by Ron Kauffman on February 6, 2023

The issue of pet custody is increasingly becoming big news in many jurisdictions as people’s views of their relationships with pets change. A new proposed Tennessee pet custody bill could bring a pet custody and visitation law to the Smokey Mountains.

pet custody tennesee

Pet Custody at its Best

Generally, when couples divorce, current law has always been that pets are treated pretty much the same as ownership of your living room couch would be – or any other piece of property for that matter. There has traditionally never been a thing called pet visitation at common law.

Two Tennessee state lawmakers are now trying to change the traditional way of dealing with pets in divorce with some new legislation. According to reports, the new bill would allow a family law judge to determine pet custody based on what’s in the best interest for the wellbeing of a pet.

Tennessee HB467/SB568 essentially states that the family law court may provide for the ownership or joint ownership of any pet or companion animal owned by the parties, taking into consideration the well-being of the animal. If passed in its current state, the act would take effect July 1, 2023.

Tennessee Representative, Caleb Hemmer, a Nashville Democrat, said he tackled the issue because custody of a pet can be a deeply emotional issue.

“For many people, pets are like family members and even cared for like children. It only makes sense for courts to treat them the same way.”

Politicians began to research passing a bill after they personally lived through the painful experience of losing custody of the family dog during a divorce.

Florida Pet Custody

I’ve written on the development of pet custody cases and statutes around the world before. Pet custody cases are becoming more and more prevalent internationally because lawmakers and advocacy groups are promoting the notion that the legal system should act in the best interests of animals. This is due, in part, because pet ownership has increased.

Pets are becoming a recognized part of the family. Some would argue they’re a modern couple’s new kids. About 15 years ago, states began to allow people to leave their estates to care for their pets. Recently, courts have gone so far as to award shared custody, visitation and even alimony payments to pet owners.

Florida doesn’t have pet custody or visitation laws. Florida courts are already overwhelmed with the supervision of custody, visitation, and support matters related to the protection of children.

Not all states have ruled out a visitation schedule for dogs like Florida. For instance, while Texas also views dogs as personal property, in one case a Texas court authorized visitation. A new California law changed the way pet custody is handled in divorce cases. The law gives judges the power to consider the care and the best interest of the pet when making decisions.

According to a recent survey of the American Academy of Matrimonial Lawyers, about 30% of attorneys have seen a decrease over the past three years in pet custody cases in front of a judge.

Over the last decade, the question of pet custody has become more prevalent, particularly when it involves a two-income couple with no children who shared responsibility for, and are both attached to, the pet.

Smiling in the Smokey Mountains

The issue of pet custody is gaining traction around the U.S. and the world as pet ownership climbs. The COVID pandemic help to further propel pet ownership and this issue. A new Forbes Advisor survey found that an overwhelming majority of pet owners – about 78 percent – acquired their pets during the pandemic.

Already about five states and Washington D.C. have passed similar pet custody laws. The current bill proposal by Tennessee politicians Hemmer and Yarbro applies to any pet owned by a married couple.

The American Academy of Matrimonial Lawyers has repeatedly reported that there’s been an ever increase in arguments over pet custody in recent years. Additionally, the drafters of the Tennessee bill want more jurisdictions to pass pet custody laws.

The Axios Nashville article is here.

Changing Gender and Child Custody

Posted by Ron Kauffman on January 23, 2023

Florida courts do not weigh a parent’s gender when determining child custody. However, in some countries, gender matters. Why? Because the law can make a presumption that during a child’s “tender” years, around age four and under, the mother is awarded child custody. One father in Ecuador decided to tilt the odds in his favor by changing his gender.

Gender Custody

Paying the Cuenta in Cuenca

On the morning of December 30, 2022, in the dusty town of Santa Ana de los Cuatro Ríos de Cuenca, Ecuador, René Salinas Ramos decided to change his gender from male to female and fight for custody of his two daughters. Salinas had a major complaint about the country’s child custody laws. Namely, the laws gave more rights to the mother than the father.

“My actions are not against anyone in particular but against the system. Being a father in this country, Ecuador, is punished and seen only as a provider.”

The Father was interviewed by La Voz del Tomebamba radio. During the interview he showed his new country ID card, which has his new gender data, “FEMENINO.” However, his ID contains the same names with which he was enrolled with originally over 47-years ago.

While the ID card has his gender as “femenino”, he still identifies himself as a cisgender male. Ecuador passed a law in 2015 that allows people to legally change their gender on government-issued documents.

Florida Child Custody

I’ve written about child custody before. Unlike Ecuador for example, Florida does not apply the “tender years doctrine” anymore. Florida has the parenting plan concept. For purposes of establishing a parenting plan, the best interest of the child, not the gender of the parent, is the primary consideration.

In Florida, the best interests of the child are determined by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including the mental and physical health of the parents.

Some of those factors include the demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required, and of course, the mental and physical health of the parents. None of the statutory factors involve the gender or sex of the parent and child.

It is also the public policy of Florida that each minor child has frequent and continuing contact with both parents after the parents separate and to encourage both parents to share the rights and responsibilities, and joys, of childrearing.

When it comes to the parents’ gender, Florida makes no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.

In Florida, the court must order that the parental responsibility for a minor child be shared by both parents unless shared parental responsibility would be detrimental to the child.

Género, patria y libertad!

According to Salinas, his daughters live with their mother in an environment in the midst of violence. These allegations of violence are reportedly denounced. Salinas boasts that now that he is a woman, he can be a mother and is on an equal footing to fight for the parental authority of his daughters.

“It is more than five months that I do not see my daughters. I can also be a mother, I know how to cook, give love, iron and other activities of a mother.”

However Salinas never explained what prevents Salinas from approaching the children. In the Father’s opinion, justice is biased in favor of women when it comes to parenting and, according to Salinas, to be on an equal footing, he no longer wants to be called dad, but mom.

“The laws say that the one who has the right is the woman. As of this moment, I am female. Now I’m also a mom, that’s how I consider myself. I am very sure of my sexuality. What I have sought is that I want to be a mother, so that I can also give the love and protection of a mother.”

Until this matter is resolved the children have to stay with their mother he told the media. The law is taking away our right to be parents and changing his official ID to show a new gender “is a proof of love.”

Salinas Ramos is reportedly the first man in Ecuador to use gender laws to gain the upper hand in a custody battle, and news of the gender change has set off criticism from transgender activists in the South American country.

Money may also be an issue. According to reports, the judicial system portal may reflect that the Father maintains a debt with his former and current spouse. This amounts to $10,766 for alimony.

Regarding the breach of this responsibility, Salinas justified that in the case of the current spouse he made an agreement, because he paid all the basic services and school obligations. Additionally, he mentioned a document signed by the mother in which she renounces the debt, but Salinas did not show it, and the document does not appear to be recorded in the computer system either.

Salinas hopes that the issue of the possession of girls will continue to be debated not only at the social level, but also in the Assembly. He acknowledged that after his gender change on the ID he has received calls for support from organizations and even politicians, but he does not want the issue to be mixed with the campaign and preferred not to approach them.

The La Voz Del Tomebamba article is here. (en Español)

Shucking Child Custody and Freedom of Speech

Posted by Ron Kauffman on January 16, 2023

Constitutional guarantees of freedom of speech and child custody rights are in for a shucking when an Indiana family court modifies a marital settlement agreement. Years after a divorce, one of the parents discovers religion. The parents end up back in court on a petition to modify custody and prohibit a parent from talking about religion.

Going Back To Indiana

The parents of a daughter were divorced in September 2012 after the trial court accepted the parties’ settlement agreement. Pursuant to their agreement, the parties shared joint legal custody of the Child, the Father paid weekly child support, the Mother was the Child’s primary physical custodian, and Father exercised parenting time.

Then in 2022, the Mother filed a petition to modify, asserting a substantial change in circumstances in that she and the Child changed churches, and she and the Child now attend Seymour Christ Temple Apostolic.

Since changing churches, the Child stopped painting her nails and now wears only long skirts. The Child attends church three times a week, on Sunday morning and Sunday evening for services and on Thursday night for youth group.

The Mother admitted the Child was baptized without informing Father until after the baptism occurred. Mother testified she wanted the trial court to modify the parenting time to eliminate the Father’s ability to question the Child’s religion or try to talk the Child into believing that there is no God.

The Father testified he is an agnostic. He denied telling Child “there wasn’t a God” and testified he had not tried to “convince her the church she goes to isn’t something she should be attending. He said he wanted Child to make her own choice about religion.

The judge conducted an in camera interview with Child, and concluded:

The Court finds that [Child] has made an independent well-reasoned decision about her faith, which should be respected and encouraged.

The Court awarded the Mother sole legal custody of the Child, primary physical custody, and ordered that the Father shall not discuss religion with Child. The Father appealed.

Florida Child Custody and Free Speech

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children. Florida courts have to balance a parent’s right of free expression against the state’s parens patriae interest in assuring the well-being of minor children.

In Florida, there have been cases in which a judge prohibited a parent from speaking Spanish to a child. A mother went from primary caregiver to only supervised visits – under the nose of a time-sharing supervisor. The trial judge also allowed her daily telephone calls with her daughter, supervised by the Father, and ordered:

“Under no circumstances shall the Mother speak Spanish to the child.”

The judge was concerned about the Mother’s comments, after the Mother “whisked” the child away from the time-sharing supervisor in an earlier incident and had a “private” conversation with her in a public bathroom. The Mother was also bipolar and convicted of two crimes. The Florida appeals court reversed the restriction. Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy.

Florida law tries to balance the burden placed on the right of free expression essential to the furtherance of the state’s interests in promoting the best interests of children. In other words, in that balancing act, the best interests of children can be a compelling state interest justifying a restraint of a parent’s right of free speech.

“Ope, sorry!”

On appeal, the Father argued the family judge erred when it modified custody based solely on religious beliefs and prohibited him from talking about religion with his Child.

In Indiana “religion” is not one of the statutory factors a trial court must consider when making a decision to modify child custody. Modifying custody based entirely on religion then – even if the Child expressed an interest in participating in religious activities at a church – was not a substantial change in circumstances to justify changing custody.

The appellate court also found the First Amendment of the U.S. Constitution – which prohibit the government from restricting expression because of its message, its ideas, its subject matter, or its content- was also violated.

In this case, the family court judge never found the Father was discussing religion with Child in a way that had a negative impact on her. The Mother testified Child “cries is withdrawn presents with a rash and/or hives, and her face is puffy” after visiting with Father. However, Mother did not specifically attribute Child’s reactions to discussions of religion between Father and Child.

The Mother did not testify about a specific instance during which Father spoke to Child about religion in general, much less a time when Father disparaged Child’s religious views or attempted to persuade Child there was not a God. For his part, the Father testified he never told the Child there was no God. In fact, he wanted the Child to make her own choices about religion.

Even if the Child had reported that Father was disparaging her religious views and telling her there was no God, the trial court’s total prohibition of Father’s right to discuss religion with Child is not narrowly tailored to further the State’s compelling interest in protecting Child’s welfare.

The family court judge’s order totally prohibiting Father from discussing religion with Child violated his right to free speech under the First Amendment. Because the appellate court reversed, it decided it did not need not address whether the order also violated his freedom of religion argument.

The Court of Appeals of Indiana opinion is here.

Pet Custody in China

Posted by Ron Kauffman on August 15, 2022

Pet custody is sweeping the world. In the People’s Republic of China, a recent divorce settlement was stalled after the divorcing couple was unable to agree on who was entitled to custody of the pet corgi.

Pet Custody

The New Kids in Divorce?

The couple, surnamed Xu and Li, from Quzhou city in Zhejiang, one of the more wealthy provinces in eastern China, agreed to get divorced in April this year. The parties reached agreement on the distribution of their joint assets and debts after their seven-year marriage, with one furry exception.

The couple have no children, but both are enthusiastic animal lovers. Accordingly, custody of a pet corgi dog they had raised together became a central focus of their divorce.

The family court helped the couple divide up joint assets, including property and vehicles quickly, as neither party had any objections. However, when it came to their pet dog, the court was surprised that both demanded full custody of the pet corgi.

Florida Pet Custody

I’ve written on the development of pet custody cases and statutes around the world before. Pet custody cases are becoming more and more prevalent internationally. That’s because lawmakers and advocacy groups are promoting the notion that the legal system should act in the best interests of animals as pet ownership increases.

Pets are becoming a recognized part of the family, some would argue they’re a modern couple’s new kids. About 15 years ago, states began to allow people to leave their estates to care for their pets. Recently, courts have gone so far as to award shared custody, visitation and even alimony payments to pet owners.

Florida doesn’t have pet custody or visitation laws. Florida courts are already overwhelmed with the supervision of custody, visitation, and support matters related to the protection of children.

According to a recent survey of the American Academy of Matrimonial Lawyers, about 30% of attorneys have seen a decrease over the past three years in pet custody cases in front of a judge.

Quzhou’s Corgi Custody Case

The woman, Xu, told the court that she deserved ownership of the corgi. She testified that not only did she buy the dog, but that she raised the corgi by herself. The corgi has become a part of her family and has been by her side ever since, she claimed.

In undermining the Husband’s custody request, she added that her ex-husband Li didn’t take responsibility for looking after the corgi. She described him as a workaholic, who in his spare time played video games.

Although Li acknowledged that he did not feed the animal as often as his ex-wife, or clean up after it, he said he often walked the dog and considered it to be his child.

The court accepted that the corgi was a joint asset in the marriage, but one which couldn’t be divided easily. Eventually, the couple reached an agreement that the corgi would live with the woman, while every month Li should pay alimony to her for taking care of the dog. If the animal became ill, they must share the dog’s medical expenses. Li was given legal visitation rights to the corgi.

After the story was reported, it caused widespread online conversation about the fate of pets in a divorce. One person commented: “A pet is a part of the family, it’s understandable the divorcing couple wanted to fight for it.” Another said: “Now that more couples give up on having children, keeping pets as kids will probably rise.”

Data showed that in 2021 the number of pet owners in China had reached 68.44 million. In the U.S. roughly 70 percent of households own a pet, with dogs being the most numerous pet and salt water fish coming in last.

The South China Morning Post article is here.

Family Court and Religious School

Posted by Ron Kauffman on May 30, 2022

In a race between schools for your child, when can a family court judge choose the religious school over a secular one? For one Kentucky family’s child custody dispute, the court of appeals decides which school enters the Winner’s Circle.

Custody and School

Starting Gate

In the Kentucky case, a Mother and Father shared joint custody of their daughter, who has been at the center of a protracted legal dispute since the parties’ separation in 2016. The parties could not reach an agreement as to where the child should attend kindergarten, and asked the court to resolve the issue.

The Father, who is Catholic, liked that Seton was a Catholic school but noted that the curriculum also emphasized general Christian principles, as well as secular subjects such as Darwinism and evolution (ed. wow)

Father said that he was willing to pay Seton tuition costs. Father expressed concern about child attending Berea Independent due to Mother’s pending criminal charges in Berea for second-degree animal cruelty. Because Berea is a small community, Father worried child could be stigmatized, even if Mother was acquitted.

Mother, who is Baptist, was not comfortable with child attending a Catholic school and preferred that child attend a secular school. Mother testified that Berea Independent was her primary choice because it was less than a mile from her work, was in a small town, and was where she went to school as a child. She also liked that it provided a K-12 grade education in one place and liked the open classroom layout of the school.

Following the hearing, the family court judge entered an order with detailed findings of fact, concluding that it was in child’s best interest to attend Catholic school.

The Mother appealed.

Florida Divorce and Religion

I have written about the intersection of religion and custody before, especially when that intersection relates to harm to the child. For example in one area there is a frequent religious controversy: whether to give a child their mandatory vaccinations. Usually, religion is used by the objecting parent as a defense to vaccinating children.

Whenever a court decides custody, the sine qua non is the best interests of the child. But, deciding the religious upbringing of a child puts the court in a tough position.

There is nothing in the Florida custody statute allowing a court to consider religion as a factor in custody, and a court’s choosing one parent’s religious beliefs over another’s, probably violates the Constitution.

So, unless there is actual harm being done to the child by the religious upbringing, it would seem that deciding the child’s faith is out of bounds for a judge. One of the earliest Florida case in which religion was a factor in deciding parental responsibility restricted one parent from exposing the children to that parent’s religion.

In one Florida case, the Mother was a member of The Way International, and the Father introduced evidence that The Way made the Mother an unfit parent. He alleged The Way psychologically brainwashed her, that she had become obsessed, and was neglecting the children. The Florida judge awarded custody to the Mother provided that she sever all connections, meetings, tapes, visits, communications, or financial support with The Way, and not subject the children to any of its dogmas.

The Mother appealed the restrictions as a violation of her free exercise of religion. The appellate court agreed, and held the restrictions were unconstitutionally overbroad and expressly restricted the Mother’s free exercise of her religious beliefs and practices.

When the matter involves the religious training and beliefs of the child, the court generally does not make a decision in favor of a specific religion over the objection of the other parent. The court should also avoid interference with the right of a parent to practice their own religion and avoid imposing an obligation to enforce the religious beliefs of the other parent.

The Home Stretch

Mother argued on appeal that the family court’s order compels her to send her child to a Catholic school she is conscientiously opposed to in violation of her constitutional rights.

The appellate court found that when parties to a joint custody agreement are unable to agree on a major issue concerning their child’s upbringing, the trial court must evaluate the circumstances and resolve the issue according to the child’s best interest.

The appellate court found substantial evidence to support the family court’s decision that sending child to Catholic school was in child’s best interest. The court specifically mentioned the school’s proximity to the interstate, its later start time, its teacher-to-student ratio, its on-site aftercare program, and the fact that child would know other students attending.

Perhaps most importantly, the family court felt it was not in child’s best interest to attend the secular, Berea Independent because of the possibility that child might experience negative social stigma due to Mother’s pending animal cruelty case in Berea.

Further, the trial court specifically noted its decision was not based upon religious interests. Mother “bear[s] the burden of proving that the decision of the trial court was based upon religious interests and such impropriety [will] not be presumed merely because the school selected had a religious connotation in addition to its academic offerings.”

The Kentucky Court of Appeals opinion can be found here.

Free Speech, Child Custody, and Insults

Posted by Ron Kauffman on May 23, 2022

Free speech can be an issue in any child custody case when parents hurl insults at each other in front of their children. Because it is not in the children’s best interest, family judges can order parents not to disparage the other parent in front of the children. One Indianapolis court recently had to consider whether an anti-disparagement order went too far.

Free Speech Custody

Start Your Engines

After several years of marriage, Yaima Israel, filed for divorce from her husband Jamie Israel. After the trial, the family court judge decided that joint legal custody was an “unworkable” option based on the parents’ inability to agree about their child’s health, education and welfare. As a result, Yaima was awarded sole legal custody.

The family court’s decree also contained a non-disparagement clause. Family courts sometimes enjoin speech that expressly or implicitly criticizes the other parent.

In another case for example, a mother was stripped of custody partly because she truthfully told her 12-year-old that her ex-husband, who had raised the daughter from birth, wasn’t in fact the girl’s biological father.

In the recent Indianapolis case, the order prohibited either parent from “making disparaging comments about the other in writing or conversation to or in the presence of child.

However, the order also prohibited insulting the other parent in front of friends, family members, doctors, teachers, associated parties, co-workers, employers, the parenting coordinator, media, the press, or anyone else. All kinds of speech was banned, including “negative statements, criticisms, critiques, insults[,] or other defamatory comments.”

The Husband challenged the judge’s non-disparagement clause that restrained them from ever making disparaging remarks about one another, regardless of whether the child was present.

Florida Child Custody and Free Speech

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children. The “best interests of the child” test — the standard applied in all Florida child custody disputes between parents — gives family court judges a lot of discretion to ban speech which can harm children. Accordingly, Florida courts have to balance a parent’s right of free expression against the state’s interest in assuring the well-being of minor children.

In Florida, parents have had their rights to free speech limited or denied for various reasons. In one case, a mother went from primary caregiver to supervised visits – under the nose of a time-sharing supervisor. The trial judge also allowed her daily telephone calls with her daughter, supervised by the Father.

The Mother was Venezuelan, and because the Father did not speak Spanish, the court ordered: “Under no circumstances shall the Mother speak Spanish to the child.”

But some have argued that if parents in intact families have the right to speak to their children without the government restricting their speech, why don’t parents in broken families have the same rights?

The Constitutional Brickyard

The Indianapolis appellate court ruled that the First Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, provides that “Congress shall make no law … abridging the freedom of speech.

Restraining orders and injunctions that forbid future speech activities, such as non-disparagement orders, are classic examples of prior restraints. Non-disparagement orders are, by definition, a prior restraint on speech. Prior restraints on speech are the most serious and the least tolerable infringement on free speech rights.

While a prior restraint is not per se unconstitutional, it does come to a court bearing a heavy presumption against its constitutional validity.

To determine whether a prior restraint is constitutional under the First Amendment, the court considers: (a) ‘the nature and extent’ of the speech in question, (b) ‘whether other measures would be likely to mitigate the effects of unrestrained’ speech, and (c) ‘how effectively a restraining order would operate to prevent the threatened danger.’”

There is a compelling government interest in protecting children from being exposed to disparagement between their parents. To the extent the non-disparagement clause prohibits both parents from disparaging the other in Child’s presence, the order furthers the compelling State interest in protecting the best interests of Child and does not violate the First Amendment.

But the non-disparagement clause in this case went far beyond furthering that compelling interest because it prohibited the parents from making disparaging comments about the other in the presence of anyone – even when the child was not present.

In the final lap, the court of appeals reversed the portion of the non-disparagement clause including “…friends, family members, doctors, teachers, associated parties, co-workers, employers, the parenting coordinator, media, the press, or anyone” as an unconstitutional prior restraint.

The Indiana court of appeals decision is here.

False Abuse Allegations in Child Custody Cases

Posted by Ron Kauffman on April 11, 2022

False allegations of abuse can be a form of alienation, and can occur during any divorce and child custody proceeding. Identifying warning signs, and knowing how the courts and laws protect against false abuse allegations, are ways to protect yourself.

False Abuse

False Abuse Claims

If a parent makes a false allegation against another parent to get the upper hand in court, they can badly undermine the parent-child relationship and use the court as a weapon to make the damage last longer.

How often do false claims happen? Accurate statistics are not known, but some have given estimates ranging from 2% to 35%. The wide range in the statistics can depend on several factors, including whether the child is reporting or a parent, and the audience.

Whatever the percentage of false claims, attorneys, judges, and mental health experts all know firsthand that it is a big problem in family court. Nothing can disrupt, sidetrack, or impede a case more than an allegation of abuse that eventually proves to be false.

Detecting a false allegation is critical because judges can be influenced by the accusation, even if it is not substantiated by the evidence. Sadly, a child custody decision could result in favor of the falsely accusing parent. Uncovering and exposing a false allegation is vital in making sure the offending parent is not rewarded for destructive behavior.

False allegations of abuse are often made during contentious child custody cases. One parent believes that he or she will gain leverage in the case by lodging an allegation of abuse against the other parent. More often than not, the allegation of abuse is a tactic used to alienate the child from the targeted parent. In other words, it is part of parental alienation. A number of steps can be taken by the targeted parent to beat the false allegation of abuse.

Florida False Abuse Claims

I have written on fraud in divorce and child custody cases before. False allegations of abuse can become the nuclear bomb of divorce and child custody cases, as Florida requires mandatory reporting of child abuse by judges and others.

There are protections and penalties for creating false abuse claims. For example, anyone who knowingly and willfully makes a false report, or counsels another to make a false report can be guilty of a felony.

In addition to criminal penalties, a false allegation can harm your child custody case too. When a court creates, or modifies a parenting plan, including a time-sharing schedule, the court must make the best interest of the child the primary consideration.

Determining the best interests of the child requires a judge to evaluate all of the factors affecting the welfare and interests of a child, including, but not limited to evidence that a parent has knowingly provided false information to the court regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.

Self-Protection

As in all matters, protecting yourself requires some work. Try to collect as much documentation as possible to disprove the allegation. Typically these include emails, texts, photos and more.

Research hiring mental health experts who can address false allegations, parental alienation, and the particular facts in a case. Forensic experts are an invaluable resource to help you in court.

False allegations of abuse are considered parental alienation. The intent of the alienating parent is to disrupt a child’s relationship with the targeted parent. Alienation is at the heart of false claims.

The Psychiatric Times article is here.

Free Speech and Child Custody Disputes

Posted by Ron Kauffman on March 8, 2022

Free speech, and the rights of people going through child custody disputes, are in the news again. Recently, a family law judge in Pennsylvania gagged – not the parents – but the Father’s new wife from online posting. The family judge ordered the child’s stepmother from posting anything on Facebook about the child, the Mother, or the case.

Gagging Stepmothers

In the Pennsylvania case, a Father appealed from the trial court’s order that restricted the speech of his new wife, a non-party to the custody case, the child’s Stepmother. The Father argued that the family court’s order improperly restricted the non-party Stepmother’s speech on Facebook.

The Mother sought to enforce the court’s modified custody order, remove the Child from Stepmother’s home, and place the Child with Children and Youth Services (CYS). The trial court held a telephone hearing, and at that hearing, Mother told the court for the first time about a post that Stepmother had made on Facebook.

Specifically, Mother’s counsel argued the Stepmother was engaging in “pure alienation” through Facebook posts:

OK…. I’m going to lay everything out for ppl to know. My husband [Father] is currently in BCP on indirect civil contempt pertaining to child custody. The judge won’t release [Father] until our minor child attends four days of this out of state program with Linda Gottlieb. Our minor child is afraid of her Mother (she lives out of state) and has been fighting not to go to this out-of-state program with her Mother to fix their relationship. . . Our minor child is still with me as she fought not to go. How much emotionally [sic] and mental abuse can a child go through. . . I have 2 great attorneys, but no matter what we do the judge sides with the other side. They are claiming parental alienation. There is no legal record of parental alienation. Now anyone that knows me or my husband knows we aren’t those ppl. We have encouraged, positive affirmations etc.. [sic] this doesn’t matter to our minor child because the child is in fear. . . We have been accused of interfering with our child going to this program. We aren’t interfering. Our child is fighting it.

The trial court issued an order that granted Mother’s petition and stated, Father and Stepmother shall not use online or web-based communications to discuss this matter.

The trial court also order the Father and Stepmother to remove the Facebook post which contains information related to the child and not post any discussion or information regarding child’s custody or other information regarding the child.

Father raised only one issue on appeal, can the judge censor the speech of the Stepmother on Facebook even though she was not actually a party in the child custody case?

Florida Child Custody and Free Speech

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children. Florida courts have to balance a parent’s right of free expression against the state’s parens patriae interest in assuring the well-being of minor children.

The Mother was Venezuelan, and because the Father did not speak Spanish, the court ordered:

“Under no circumstances shall the Mother speak Spanish to the child.”

The Florida appeals court reversed the restriction. Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy.

You’ve Got a Friend in Pennsylvania

Back in the Pennsylvania case, the appellate court quickly noted that the Stepmother was simply not a party to the lawsuit between Father and Mother, she was not served with process, and she had no notice or opportunity to challenge the communications restriction order.

Because the non-party Stepmother did not have notice nor an opportunity to challenge the order, and the parties did not address the trial court’s exercise of personal jurisdiction over her the appellate court held that the family judge had no authority to impose a gag order on the Stepmother and vacated the order.

The opinion is here.

New York Judge Orders Child Vaccinated Over Parent’s Objection

Posted by Ron Kauffman on December 9, 2021

More news on child custody and vaccines as a family judge in New York orders an 11-year-old child to get vaccinated against COVID over a parent’s objection. It is a surprising child custody dispute over vaccination between a child’s lawyer/mother and scientist/father.

Child Custody Vaccination

Start Spreading the News

Donald and Jeannie Figer were divorced in 2012. Their divorce did not end the controversy. The mother, Jeannie Figer, is a lawyer in Rochester and her ex-husband, Donald Figer, is reported to be a scientist and professor at Rochester Institute of Technology. Their dispute? Must their child be vaccinated against COVID-19.

The recent decision comes out as the highly transmissible Omicron variant is quickly taking over. New York is becoming known as a state with some of the strongest vaccine mandates. While New York only encourages children to get vaccinates, New York City just expanded its COVID-19 mandates, setting vaccine requirements for children as young as 5 years old, and for workers at all private companies.

The father, who has himself been vaccinated, didn’t want them to rush the shot for his daughter as there were not any studies conducted on long-term side effects of the vaccine on kids, court papers say.

But Monroe County Supreme Court Judge Richard Dollinger ruled that time is of the essence in getting the 11-year-old vaccinated against the virus, and sided with Jeannie, who works as an attorney.

‘”Waiting — to be ‘sure,’ as the father asks — is simply untenable, when the specter of a killing or incapacitating disease is swirling in the environment surrounding this young girl. Scientists may never catch up to this ever-evolving and elusive virus and variants.”

The judge ordered the mother to get her daughter a vaccination appointment as soon as possible. It is unclear if the girl has since had the shot.

Florida Child Vaccinations

I’ve written about the injection of vaccines into Florida child custody cases before. In Florida, the prevailing standard for determining “custody” is a concept call shared parental responsibility, or sole parental responsibility. Generally, shared parental responsibility is a relationship ordered by a court in which both parents retain their full parental rights and responsibilities.

Issues relating to a child’s physical health and medical treatment, including the decision to vaccinate against COVID-19, are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court.

In Florida, a court can carve out an exception to shared parental responsibility, giving one parent “ultimate authority” to make decisions, such as the responsibility for deciding on vaccinations.

The decision to vaccinate raises interesting family law issues. It is important to know what your rights and responsibilities are in Florida and other states.

New York State of Mind

Judge Dollinger noted that Monroe County – where the child lives – has the second-highest rolling seven-day average of new cases per day since November 22nd. Many speculate the judge also worried about the rising Omicron variant of the virus, and an uptick of cases locally in upstate New York.

Judge Dollinger himself noted that he was confused about to why:

“an accomplished scientist and professor would oppose a child vaccine authorized by the CDC and universally encouraged by state and local physicians and other health officials.”

Jeannie Figer pointed out that both she, Donald, and their 19 and 17-year-old daughters have already been vaccinated and wanted the 11-year-old to join them. The ruling adds that the girl’s doctor has also recommended the vaccination.

Judge Dollinger also found that the risks of side effects from the vaccine are lesser than what would happen if she tested positive for virus, including spreading it to others.

‘”This court is unwilling to kick this can down the road,. ‘It could be years before any researchers have exacting accounts of either the short or long term consequences of the administration of this vaccine on 11-year-old girls with this child’s physiological makeup.'”

The Centers for Disease Control’s Advisory Committee on Immunization Practices in November unanimously voted 14-0 to recommend the Pfizer-BioNTech’s Covid pediatric vaccine dose for five to 11-year-olds. Over 700 children in the U.S. have died of COVID, but many American parents have cited the relatively low risk COVID poses to children as reason to hold off on vaccinating younger children.

The MSN article is here.