Category: Child Custody

Losing Custody for Lack of Medical Care

Posted by Ron Kauffman on

At a time when there is a COVID vaccine, losing custody for your child’s lack of medical care is a real possibility. This is especially true for two Nebraska parents who refused to provide cancer treatment for their 4-year-old son. Their custody case reached the Nebraska Supreme Court.

Custody Medical Care

Breaking Away

The 4-year old, named Prince, was diagnosed with alveolar rhabdomyosarcoma of the right forearm with local metastases to the axillary lymph nodes. His parents were assured that his condition was curable with regular chemotherapy and radiation, but without treatment, the condition would be fatal.

His parents, Mohamed and Abak, informed of Prince’s diagnosis and prognosis, intentionally kept him from receiving treatment. The state became concerned that their actions placed Prince at a risk of harm.

Dr. Melissa Acquazzino, a cancer specialist, told the parents that Prince would likely die within six months if he didn’t get the treatments.

Prince’s initial treatment went well. His tumor visibly shrank and his side effects were minimal. The hospital’s social worker also arranged for money to help the parents repair their car so they could make the weekly chemo appointments.

But two months after treatments began, Prince began experiencing side effects such as nausea, vomiting and fatigue, court records indicated, and his parents began skipping some of his appointments.

The father felt the doctors were giving Prince too much medicine, too quickly, and that the cancer would not kill his son, but the treatments would.

Prince did attend his radiation appointment on October 2, 2019 but after that, however, neither parent brought Prince to any further radiation or chemotherapy appointments.

Hospital officials contacted the state Child Protective Services agency, which investigates cases of child abuse and neglect. A state investigator experienced difficulty in locating Prince, who had been living with his mother at a Lincoln homeless shelter.

The father, according to the investigator, said the mother was in Arizona seeking a second opinion. The father also disagreed with the investigator’s opinion that Prince was in danger of dying if his treatments were not resumed.

During a four-day trial in Lancaster County Juvenile Court, there was no evidence presented that the parents had sought a second medical opinion, nor that Prince had received any treatments. Neither parent raised a religious or cultural objection to the treatments.

The trial court ruled that the child lacked proper parental care by reason of the “fault or habits” of both parents. The parents appealed.

Florida Child Custody

I’ve written about child custody issues as they impact divorce and paternity issues. The Nebraska case, by contrast, involved a dependency matter. In Florida, “custody” is a concept call parental responsibility, which can be either shared parental responsibility or sole parental responsibility.

In divorce and paternity cases 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.

Some of those factors concern the demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent and of course, evidence of, child abuse, child abandonment, or child neglect.

As seen in Nebraska, when child neglect, abuse or abandonment come into play, a state’s child protective services get involved.

Cutters and Custody

The Nebraska Supreme Court upheld the decision citing previous rulings that “proper parental care” included providing for the “health, morals, and well-being” of a child, and not placing them “in situations dangerous to life or limb.”

The child’s mother, Abak, argued that that Prince did not lack proper parental care by reason of her fault or habits and that Prince did not face a definite risk of future harm.

But the Supreme Court found that she didn’t address the crux of the State’s case: that she took Prince out of Nebraska and, for more than 3 weeks until the State was able to locate them, kept Prince from receiving the treatment essential to his survival.

The Father tried to blame the Mother, arguing the failure to treat Prince’s cancer was exclusively on Abak. The Supreme Court did not buy it.

The high court found it more likely than not that Mohamed supported and bears responsibility for the decision to remove Prince from treatment.

As an aside, a Nebraska jury found Abak guilty of negligent child abuse and the Father reportedly was quoted as saying:

“We are a family in pain and our human rights have been violated this is beyond Nebraska this should be international because for you to take a child from a parent that has never wronged the child this is wrong,”

The Omaha World Herald article is here.

 

COVID-19 Vaccine and Child Custody Modification

Posted by Ron Kauffman on

A new case on the COVID-19 vaccine and child custody modification in Colorado asks what happens after the divorce when a parent has a change of heart about vaccinating the children, while the other maintains a religious-based objection to vaccination?

COVID CUSTODY

Rocky Mountain Parenting

In a post-divorce dispute, a court had to address the burden of proof to apply when considering the request of a father to modify the medical decision-making responsibility clause of their parenting plan to allow him to vaccinate the children, over the objection of the mother.

The parties’ parenting plan provided for joint medical decision-making authority and that “[a]bsent joint mutual agreement or court order, the children will not be vaccinated.”

The father had a change of heart about the children remaining unvaccinated. He described a “wake-up moment” he had when traveling for business to Seattle while the city was experiencing a measles outbreak, and then being afraid to be around the children after he got home out of fear of unknowingly exposing them.

Mother opposed vaccinating the children, in part, because it conflicted with her religious beliefs and also argued that vaccines pose a risk of side effects for the children. Specifically, because mother has an autoimmune disease and the children all had midline defects at birth, she asserted that vaccinations for the children are contraindicated.

The parents agreed a parenting coordinator/decision-maker (PCDM) could decide the issue. However, the PCDM declined to render a decision, stating that the issue was outside of her expertise and likened rendering a decision on it to “practicing medicine without a license.”

While the trial court rejected mother’s medical-based objections, the judge found that vaccination would interfere with mother’s “right to exercise religion freely,” and therefore imposed an “additional burden” on father “to prove substantial harm to the children” if they remained unvaccinated.

The court ruled that father had not met this additional burden and denied his motion to modify medical decision-making responsibility.

Father appealed.

Florida Vaccinations and Child Custody

I have written about the relationship between vaccinations and child custody in Florida 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.

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.

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

At the trial, the test applied is the best interests of 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.

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.

A Double Black Diamond Issue

The appellate court reversed.

Generally, Colorado has a substantial change in circumstances test for modifications, so that a court cannot modify a parenting plan unless it finds that a change occurred in the circumstances of the child or of a party and that modification is necessary to serve the child’s best interests.

In Colorado, a court has to keep the decision-making responsibility allocation from the prior decree unless doing so “would endanger the child’s physical health” and the harm likely to be caused by a change in decision-making responsibility is outweighed by the advantage to the child.

In this case, the court found that the mother’s free exercise rights are not implicated by a court’s allocation of decision-making responsibility between parents because when allocating decision-making responsibility between parents, the court is merely expanding one parent’s fundamental right at the expense of the other parent’s similar right.

The trial court erred by imposing a heightened burden on father to show substantial harm — a burden only relevant to show a compelling state interest under a strict scrutiny analysis — when considering his request to modify the parenting plan.

Once the court found the failure to vaccinate endangers the children’s physical health, and that the risks of vaccination are “extremely low” as compared to its benefits of “preventing severe illness, permanent severe damage, and death,” it should have proceeded to the second prong of the inquiry, namely, whether the harm likely to be caused by changing decision-making responsibility outweighed the benefit to the child.

The opinion is here.

 

The Covid-19 Vaccine and Child Custody

Posted by Ron Kauffman on

The Covid-19 vaccine is here, but big child custody questions are presenting themselves when parents disagree about vaccinating their children. As countries around the world start administering the vaccinations against COVID-19 on a massive scale, many parents are wondering what happens if one of the parents objects to vaccinating their child.

covid vaccine child custody

Point of Contention

In a recent English case, the parents objected to their child receiving various vaccinations which are routinely administered to babies. The father was driven by the fundamental belief that neither the court nor the State has any jurisdiction to take decisions in relation to his children.

The judge found:

It is self-evident that for a healthy, young infant, the risks contingent upon not vaccinating him significantly outweigh the benefits. The conditions identified include potential for catastrophic consequences which, as illustrated, involve paralysis, seizure, learning disabilities, visual loss and cancer.

The Court then ruled that the vaccinations should not be characterized as “medical treatment” but as “a facet of public preventative healthcare intending to protect both individual children and society more generally.”

Florida COVID-19 Vaccinations and Child Custody

I wrote an article on the relationship between vaccinations and child custody in Florida 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.

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.

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

At the trial, the test applied is the best interests of 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.

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.

Parting Shots

In re B, was another case in Britain which involved another English vaccination case, only this time it was a private matter between parents, as opposed to the state requiring a vaccination.

The case concerned a 5-year-old girl, B, whose parents were separated and unable to agree as to her immunization. Before the parents separated, B had received all the recommended vaccinations. Under the recommendations of Public Health England, she was now due (or overdue) 3 further vaccinations.

The father, though lacking relevant medical expertise, had carried out extensive research and exhibited over 300 pages of material in support of his position. The judge extrapolated the father’s 7 key points and Dr Elliman addressed the medical issues. The court dismissed the father’s proposition that where parents disagree on a child being vaccinated, then the status quo should be preserved as wrong in law.

Dr Elliman acknowledged that no vaccination is 100% risk free, but that vaccination has greatly reduced the burden of infectious disease.

The judge noted the paramountcy principle and the principle that delay in determining the matter may be prejudicial to B’s welfare. In respect to the no order principle, the judge recorded that the court should decide the matter as the parents’ views were polarized. With regard to Article 8 of the European Convention, His Honor Judge Bellamy stated that any order made by the court must be proportionate and in B’s best welfare interests.

Having considered the case law, the judge then determined that Dr Elliman’s opinions were ‘mainstream’ whilst the father’s views were biased and unreliable. In conclusion, the judge granted the specific issue order and made a declaration that it was in B’s best welfare interests to receive the vaccinations.

The article on the British cases by Sarah Williams is here.

 

Canada, COVID, Custody, and Class

Posted by Ron Kauffman on

The COVID pandemic resulted in a recent child custody case from Canada, which decided between in-person class or remote, online education. The family judge in Ontario found the father in contempt for registering their daughter for in-person class, but then the order took a surprising turn.

Covid Education

Learning the Hard Way

In the Canadian custody case over COVID and classroom learning, the parties lived together from 2009 to 2014, and had a nine-year-old daughter. After their separation, the child timeshared between parents on a week on/week off basis. The parents shared joint custody and equal parenting time.

Importantly, their custody decree also stated that both parties had to agree to a decision concerning the child’s education, and if they disagreed, they would go through mediation before initiating litigation.

Last March, the COVID-19 pandemic impacted in-person education at schools. From July to August, the parties exchanged emails discussing what they should do about the child’s education when the elementary school reopened in September.

The father wanted the child to attend school in person and to take the school bus, while the mother objected. Despite the mother’s opposition, the father registered the child for in-person education and arranged for the child to be transported by bus during his weeks.

The mother asked the court to order their child attend school remotely from home through online learning and that the father be found liable for contempt of court due to his act of unilaterally registering the child for in-person education in violation of the order. The father in turn asked the court to order that the child attend school in person and use the school bus for transportation.

Florida COVID Custody and Class

I’ve written about the custody and education before. In Florida, shared parental responsibility is the preferred relationship between parents. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

Issues relating to a child’s education are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court. At the trial, the test applied is the best interests of the child.

Determining the best interests of a child is based on an evaluation of statutory factors, and one equitable catch-all factor, affecting the welfare and interests of the child and the circumstances of the child’s family.

The statute authorizes one parent to have ultimate responsibility for certain decisions. For example, education is an area of ultimate responsibility a court can award. When a decision on education goes to trial, the court grants one parent ultimate responsibility to make that decision.

Oh Canada!

The Ontario Superior Court of Justice ruled that it was in the child’s best interests to attend the elementary school’s French Immersion Program in person and to be permitted to take the bus for transportation between her father’s house and the school.

“In my view, if schools are open, children should attend unless there is an unacceptable risk to either the child or a member of their household that is created by the fact the child attends the school and may contract the virus,” wrote Justice Mark Shelston for the Superior Court.

Justice Shelston considered a number of factors presented by the parties in determining the child’s best interests. For instance, a doctor’s report indicated that the child was at risk for psychosocial and school difficulties. The doctor recommended that the child have an individual educational plan that would support her needs.

Justice Shelston noted that this plan required the child’s in-person attendance so that she could work closely with the teachers. The child would also benefit from the French social and linguistic milieu provided by in-person attendance.

Though the mother alleged that members of the immediate and extended family, including the child’s grandparents, suffered from underlying chronic medical conditions – which placed them at a heightened risk for severe illness from COVID-19 – Shelston said that there was no medical evidence to support this allegation. Neither was there evidence that the grandparents lived with the child.

As regards the child riding the school bus, Shelston stated that there was no basis to conclude that the child would be at higher risk of contracting COVID-19 when taking the bus.

Though the father was successful with regard to the school issue, the court ordered him to pay the mother’s costs associated with the motion for contempt. The father was held liable for contempt of court because he had registered the child for in-person education and had made school bus arrangements without the mother’s approval, in breach of the 2017 court order to which both parties had consented.

The Law Times News article is here.

COVID Custody and Vaccinations

Posted by Ron Kauffman on

COVID and child custody are back in the news as news of the availability of vaccinations hitting the market becomes a reality. COVID first made family law news in Miami early in the pandemic, when an E.R. doctor was stripped of custody of her 4-year old daughter. What impact will COVID vaccines have on custody?

covid custody vaccine

Getting to the Point

In a recent Broward case, Melanie Joseph wanted to see her son, but a judge wouldn’t let her — for no reason except that she won’t wear a mask. Joseph’s 14-year-old son has asthma, a condition that could put him at risk of contracting COVID-19 during this pandemic, court filings show.

Broward Circuit Judge Dale Cohen called the mother an “anti-mask person” who had the “audacity” to brag about it on Facebook. Many take issue with the decision, but it illustrated how judges in family court consider the health risks of COVID-19.

Other cases followed across the country, most involving at least one parent working on the front lines of the crisis. Judges have been patient in considering both sides of coronavirus cases, but that doesn’t mean they’re not willing to step in when they think the child’s health might be at risk.

Florida Vaccinations and Child Custody

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.

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.

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

At the trial, the test applied is the best interests of 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.

I wrote an article on the relationship between vaccinations and child custody in Florida before. 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.

A Dose of Reality

Melanie Joseph, who moved to North Carolina from Coral Springs at the outset of the pandemic response, drew Broward Circuit Judge Cohen’s ire by posting a picture of herself on social media that went viral: it showed her not wearing a mask while in the waiting room of her oral surgeon’s office in June.

Joseph’s selfie ran with the caption “no mask for this girl” on social media, drawing the ire of the Broward judge handling her custody case. She defended her selfie by saying she was alone in a doctor’s waiting room in North Carolina, where there was no mask requirement at the time.

“She’s one of those anti-mask people and she’s got the audacity to post that on social media,” the judge said. “She’s going to wear a mask. If she doesn’t, time-sharing is not going to happen.”

Cohen’s pointed criticism came in an online hearing Sept. 8 and prompted Joseph’s attorney to ask him to remove himself from the case, which has dragged on for 13 years (the child at the heart of it is 14). Cohen declined.

The judge said in-person visits would have to be supervised because he doesn’t trust Joseph, 43, to wear a mask. And he would not consider a long-distance parenting plan — which outlines each parent’s rights when they don’t live in the same state — between Joseph and her son until the COVID crisis has passed.

“When this pandemic is over and there’s no cases and there’s a vaccine … the mother is going to need to get a vaccine as well. When I have proof that everybody’s safe and the child’s not at risk or danger, then we can talk about a long-distance parenting plan.”

Ultimately, the issue of masks never made it into Cohen’s written ruling, issued late last week, and he softened the vaccine mandate. The order states:

“After a safe and reliable vaccination against COVID-19 is available, the mother may be vaccinated and the child may be vaccinated, thus eliminating that particular danger.”

Joseph acknowledged in an interview that she posted a selfie taken at her oral surgeon’s office in June. “No mask for this girl,” she wrote in the caption. At the time, Joseph said, there was no mask mandate in North Carolina and she was alone in her doctor’s waiting room.

She accused the judge of letting his personal political views cloud his judgment in the case. “My case has been in the court system for a number of years and I have experience with court proceedings,” she said. “What occurred is unconstitutional and should never happen to a parent.”

The child’s father thinks Cohen made the right decision. “My client has a legal obligation to protect his son,” said Donna Goldman, the father’s attorney. “This case has been going on a long time, and the judge weighed more than just COVID. He made the right decision to protect the child’s health.”

The Sun Sentinel article is here.

Religious Education, Child Custody & Stephens’ Squibs

Posted by Ron Kauffman on

Choosing between a secular and religious education is a common problem in child custody cases. When two Canadian parents couldn’t decide between a religious or secular school for their son, an Ontario family court judge decided the issue with the force of Niagra Falls.

Custody Educaton

Oh Canada

In one recent case, the father and the mother, who were married then separated, disagreed on the school that their three-year-old child would attend.

The father wanted the child to go to the Thornhill Nursery School and Kindergarten, a secular school, while the mother preferred for the child to go to the Associated Hebrew Schools, a private Jewish school. Both parents were Jewish and were raising their child in the Jewish faith.

The father argued that their son had previously attended the secular school and would benefit from the stability of returning there, that the cost of this school was significantly lower and that the child could have a separate Jewish education on Sundays.

Conversely, the mother argues that she has always remained steadfast in her belief that it is best for Joshua to attend AHS, a private Jewish school.  She alleged that their son is Jewish as are both parents and both sets of grandparents.

Their son was being raised in the Jewish faith. that requiring the child to have a separate Jewish education on Sundays would limit his time with his family and friends, and would result in additional costs.

Florida Education and Child Custody

I’ve written about custody and education issues before. In Florida, shared parental responsibility is the preferred relationship between parents. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

Issues relating to a child’s education are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court. At the trial, the test applied is the best interests of the child.

Determining the best interests of a child is based on an evaluation of statutory factors, and one equitable catch-all factor, affecting the welfare and interests of the child and the circumstances of the child’s family.

The statute authorizes one parent to have ultimate responsibility for certain decisions. For example, education is an area of ultimate responsibility a court can award. When a decision on education goes to trial, the court grants one parent ultimate responsibility to make that decision.

A CN Tower-ing Decision

The Ontario Superior Court of Justice decided that it was in the child’s best interests for his parents to enroll him at the Associated Hebrew Schools.

The Court based its decision on the best interest of the child. The best interest is not merely a label, but required the Ontario family court to consider the child’s needs and circumstances, including, the emotional ties between the child and each family, people involved in the child’s care and upbringing; and the child’s preferences among others.

The family law judge found that both parents agreed that the child should be in school despite the risk of Covid-19 and should be raised as a member of the Jewish faith.

Both schools were adequate educational facilities which have adequately addressed Covid-19 risks.  In terms of geographical proximity neither requires extensive travel and the child will experience change whichever school he attends.

The civil family judge in Canada reasoned the religious school was in the child’s best interest because it offers an academic education, religious instruction and Hebrew during the week.

This was preferable to the father’s request he be enrolled in a supplemental Jewish Program in addition to his secular school. The supplemental Jewish Program would occur on Sundays and parenting time is precious and weekend times are crucial.

The judge also determined that the cost of religious school was not significantly more than the secular for junior kindergarten.  While religious school tuition is $14,185, and secular school is $8,530, the added cost of the weekend supplemental Jewish Program raised the cost goes to $9,530.  And, religious tuition is eligible for a charitable tax receipt making the after-tax cost of tuition considerably lower.

Even when the parents are more closely aligned in their religious beliefs, sharp conflict can still arise over the form that the child’s religious education is to take, regarding religion and co-parenting arrangements.

The Ontario family court decision is available here.

Speaking on Stephens’ Squibs

I always enjoy talking with Eddie Stephens. Not surprisingly, I had a great time on Stephens’ Squibs, his monthly family law continuing legal education seminar where we discussed our recent constitutional victory in the appellate court – one of the rare times a divorce and family law case can turn on a constitutional question.

Episode 4, will be available on demand beginning November 15, 2020.

Learn more here.

 

Upcoming Speaking Engagement on Parenting Plans

Posted by Ron Kauffman on

I look forward to speaking about child custody and timesharing parenting plans on December 4th at the Dade County Bar Association & Dade Legal Aid/Put Something Back “Nuts and Bolts of Family Law” Seminar. I will be speaking along with my colleagues, Hon. Samantha Ruiz Cohen, Michelle M. Gervais, Robert C. Josefsberg, Amber Kornreich, Paul R. Lipton and Jacqueline M. Valdespino.

Child Custody Parenting Plans

Dade Legal Aid/Put Something Back

Dade Legal Aid provides direct civil legal services for low-income residents of Miami-Dade County. Since 1949, we have been passionately committed to providing “Access to Justice” to those in need of legal representation, including low-income individuals and families impacted by the current health crisis.

Dade Legal Aid provides life-changing and often life-saving services in the areas of Family Law, Domestic Violence, Guardianship, Child & Teen Advocacy, Human Sex Trafficking, Guardian ad Litem and other areas of law.

Annually, the agency serves over 5,000 clients positively impacting the lives of over 10,000 residents utilizing a strategic mix of experienced staff attorneys, pro bono attorneys, law firm partnerships, law school stakeholders and dozens of collaborations with diverse organizations and groups with the aim of assisting vulnerable populations and families living in poverty

Child Custody and Timesharing

I will be discussing parenting plans, a topic I’ve written and spoken about before. Generally, a parenting plan is a document created by lawyers or the court to govern the relationship between parents relating to decisions that must be made regarding their minor children.

Parenting plans must contain a time-sharing schedule for the parents and children too. The issues concerning the minor children should also be included, and consist of issues such as the children’s education, their health care, and physical, social, and emotional well-being.

When creating parenting plans, it is important to consider all of the circumstances between the parents, including the history of their relationship, whether there are any issues about domestic violence, and many other factors must be taken into consideration.

A parenting plan has to be either developed and agreed to by the parents and approved by a court; or in the alternative, a parenting plan must be established by the court – with or without the use of a court-ordered parenting plan recommendation – when the parents cannot agree to a parenting plan, or the parents agreed to a plan, but the court refuses to approve the parents’ plan.

Register here.

 

Swinging into Child Custody Co-parenting

Posted by Ron Kauffman on

Four years after Spiderman star Tobey Maguire separated from his estranged Wife Jennifer Meyer, the couple is swinging into a new life of child custody and co-parenting in a way many divorcing couples should stick to.

Spiderman coparenting

Spiderman Meets Divorce Court

The two are officially ending their marriage. Four years after splitting, Meyer filed for divorce from the actor. Jennifer Meyer announced their separation, but the issues that led to the end of their nine-year marriage are not new.

“They’ve been living separate lives for a while. They have completely different interests and haven’t seemed to be connecting.”

Part of the problem seems to be a personality clash. “He’s extremely private and prefers to stay home, and she’s very social and has tons of girlfriends,” the source explains.

“They haven’t been happy together for a long time. But they are great parents, and they love their children.” A family friend echoed the couple’s devotion to their children. “It’s a marriage that’s ending, but a bond and a family as strong as any I know. They’re remarkable people. And very supportive of each other.”

Florida Co-Parenting

The question about an award of custody of children frequently comes up and is a matter I’ve written about before. Many people are surprised to learn that the term “custody” is no longer recognized in Florida.

Florida replaced the “custody” term for the “parenting plan” concept in order to avoid labeling parents as “visiting parent” or “primary parent” in the hopes of making child custody issues less controversial, and encourage parents to co-parent more effectively.

Under Florida’s parenting plan concept, both parents enjoy shared parental responsibility and a time-sharing schedule. “Shared parental responsibility” means both parents retain full parental rights and responsibilities and have to confer with each other so that major decisions affecting their child are made jointly.

A time-sharing schedule, as the name suggests, is simply a timetable that is included in the parenting plan that specifies the times, including overnights and holidays, that your child spends with each parent.

Florida’s parenting plan concept has changed sole custody into “sole parental responsibility.” The term means that only one parent makes decisions regarding the minor child, as opposed to the shared parental responsibility terms, where both parents make decisions jointly.

Spidey Sense

Maguire, 41, and Meyer, 39 met in early 2003 and were married four years later in an intimate wedding ceremony in Hawaii, witnessed by a small group of family and friends.

At the time Meyer, a jewelry designer, shared her feelings about the big moment, telling USA Today, “Let’s just say this is truly the best time of my life. I’m walking on air. I’m getting married, starting a family and have an amazing company.”

The actor, who has spoken out about having a rocky childhood, revealed that settling down was a big priority in his life.

“Growing up the way I did, I had a very serious ambition to make some money, to have some security and comfort in my life,” he told Parade magazine in 2007.

Maguire has been keeping a low profile in Hollywood since wrapping up Spider-Man 3 — his final outing with the franchise — in 2007, appearing only in a handful of carefully selected projects including 2013’s The Great Gatsby and 2015’s Pawn Sacrifice, his last film to date.

The actor has also been seen hanging with pal Leonardo DiCaprio and girlfriend Nina Agdal, mostly recently on a yacht in Ibiza.

Maguire and Meyer also attended Jennifer Aniston and Justin Theroux’s secret wedding last year (Meyer designed Aniston’s wedding ring), and eventually joined Aniston and Theroux on a group honeymoon trip to Bora Bora that included a slew of other friends.

“They have completely different interests and haven’t seemed to be connecting,” the insider said at the time. “He’s extremely private and prefers to stay home, and she’s very social and has tons of girlfriends.”

“They haven’t been happy together for a long time,” the source continued, “but they are great parents, and they love their children.”

Despite their separation, the duo seems to have remained on friendly terms. The Spider-Man star has shown up to support Meyer in the years since their split. In 2018, Maguire attended the opening of his ex’s jewelry store in Los Angeles and posed for photos with Meyer.

In June, Meyer wished Maguire a happy Father’s Day on Instagram, calling the actor her “best friend.”

“To the best baby daddy. All is can say is no matter what happens in life, to relationships etc…. choose a dad for your kids that you can count on forever. This one right here is my best friend and the greatest dad to our babies. I’m sorry Tobey, I know you hate Instagram, but every once in a while I like to brag to everyone about how special you are ❤️ Happy Father’s Day.”

The People article is here.

 

Your Nanny Could Be Entitled to Custody and Visitation

Posted by Ron Kauffman on

A married high school teacher in Vermont recently learned that the troubled student she and her husband took in, and who helped with nanny duties, could be entitled to custody and visitation of her child as a ‘de facto’ parent. How did the Vermont Supreme Court just decide the issue?

de facto parent 2

Half Baked Parents

A 5-year old boy is the biological son of a Mother and Father. The Mother is a 41-year old high school teacher who was pregnant with a child. The Plaintiff (Student) was a female high-school student from an abusive household who always relied on the Mother for moral support.

When the Student turned 18, she was kicked out of her own home, was welcomed into the Mother and Father’s home, paying $100 a month for utilities and helped with chores. Two weeks after moving in, the Student left to attend college in northern Vermont and returned on the weekends.

The Student and the Father started a romantic relationship, which turned into a polyamorous sexual relationship involving the Mother: they slept in the same bed and of course, got matching tattoos.

The Mother and Student went to the Mother’s prenatal visits, she was present for the baby’s, J.F., birth, and even cut the umbilical cord. But unbeknownst to the other two, the Mother went to a divorce lawyer.

The Father later found evidence the Mother was having an affair. As retaliation, the Father and Student took the Mother’s phone, her high-heeled shoes – calling them her “whore shoes”— her makeup, and used FBI interrogation methods such as sleep deprivation on the Mother.

After the Mother filed for divorce, the Student sought custody as a de facto parent when the Mother would not allow her to see the baby.

Florida De Facto Parents

I’ve written about various custody issues involving non-biological parents before – in Florida it has typically meant grandparent visitation rights. Often times people who are not married, not adoptive parents, and not biological parents, are involved in raising a child. When relationships sour, the non-parent seeks visitation and timesharing of a child that’s not really theirs.

Florida’s rules regarding visitation and timesharing are governed by statute. And by its explicit provisions, the statute applies only to parents’ visitation rights and does not extend to nonparents.

There are a few Florida cases that have applied the law to hold that nonparents are not entitled to visitation. Because of these cases, non-parents do not have standing to even ask the court for visitation and timesharing.

The role of the de facto parent is very fragile. The Florida Supreme Court, relying on the constitutional right of privacy, has unequivocally reaffirmed adoptive or biological parents’ right to make decisions about their children’s welfare without interference by third parties.

The distinction between “adoptive or biological parents” is critical in Florida. The law is clear: those who claim parentage on some basis other than biology or legal status do not have the same rights, including the right to visitation, as the biological or legal parents.

A Chunky Monkey Decision

Back in Vermont, after extensive hearings, the family court judge refused to find the Student was a de facto parent, and the Student appealed, ending up in the Vermont Supreme Court.

The high court upheld the family court judge, who found that the Student failed to prove her role in the family was more than that of a nanny. Simply taking care of the baby when mother was at work, not on weekends, vacations, or during the evenings or overnight was not enough.

The court also rejected the Student’s argument that she was a de facto parent because she didn’t hold out J.F. as her own child. A few Facebook posts over the course of four years was not considered enough.

Finally, the court concluded that continuing the relationship was not in J.F’s best interests because of the controlling nature of the Father’s and Student’s relationship with the Mother. Getting the Mother suspended, taking away her shoes and the sleep deprivation techniques, all had a negative impact on the child – causing difficulty sleeping, constipation, and bedwetting.

Additionally, the court was concerned that the Student having report the Mother to the school and getting her suspended from her job, meant that a continuation of the Student’s relationship with the child could result in continuing control over the Mother, and that control was not in the child’s best interests.

The Vermont Supreme Court decision from Reason.com is here.

Religion LGBTQ+ and Custody Rights Erupt

Posted by Ron Kauffman on

Religion LGBTQ+ and child custody rights recently erupted in a Washington federal court. Parents usually have the right to direct the religious upbringing of their children, but one couple found their religious beliefs prevented them from even becoming parents.

Parent Custody

Rumblings

James and Gail Blais wished to become foster parents, and eventually adopt, Gail’s biological great-granddaughter, H.V. The first step to adoption requires them to be licensed foster parents. However, they are observant Seventh day Adventists.

The reason for the need to become foster parents so quickly is because shortly after H.V.’s birth – in fact, while she still was in the hospital – H.V. was removed from her biological parents and placed in foster care out of concerns for her welfare. H.V. is an infant. At no time during the application process has she exhibited any issues with regard to sexual orientation or gender preference.

The Blaises wanted to care for H.V. by becoming her foster parents with the goal of adoption if reunion with her mother was not possible. They are the only biological relatives who have expressed an interest and ability in fostering and adopting H.V.

The Department administers the State’s foster licensing and placement program, and the requirements for becoming a foster parent are laid out in Washington law and the Department’s Policy 6900, entitled “Supporting LGBTQ+ Identified Children and Youth.”

The Blaises participated in Department mandated training and required certification courses. They made clear that, as Seventh-day Adventists, they believe it is important to love and support all, particularly youths who may feel isolated or uncomfortable because of who they are.

But with regard to the specific hypothetical questions relating to possible hormone therapy, in the event H.V. one day developed gender dysphoria, the Blaises said they could not support hormone treatments based on their sincerely-held religious convictions, but would still be loving and supportive of H.V.

The Department denied the Blaises’ foster care license application, and H.V. remains in non-relative foster care. The Blaises filed a federal action against the Department seeking to enjoin the enforcement of the Department policy as it violated the First and Fourteenth Amendments.

Florida Religion and Family Law

I’ve written about the intersection of religion and divorce – especially as it relates to vaccinations. Religion, religious beliefs, and religious practices are not statutory factors Florida courts consider when determining parental responsibility.

Nor is religion an area in which a parent may be granted ultimate responsibility over a child. Instead, the weight religion plays in custody disputes grew over time in various cases.

That’s because placing restrictions on a parent’s right to expose his or her child to his or her religious beliefs have consistently been overturned in the absence of a clear, affirmative showing that the religious activities at issue will be harmful to the child.

Generally, Florida courts will not stop a parent from practicing their religion or from influencing the religious training of their child inconsistent with that of the other parent.

Eruption

The federal judge found the question in this case was whether Washington’s regulations covertly suppressed religious beliefs. The judge found that in practice, the Department regulations work to burden potential caregivers with sincere religious beliefs yet almost no others.

It also found that the Department’s interpretation of its regulations and policies also favored secular viewpoints over certain religious viewpoints.

For example, the Department favors religious and non-religious applicants who have neutral or pro-LGBTQ+ views over religious and non-religious applicants who have non-neutral or anti-LGBTQ+ views.

The State denied their application because the tenet of the Blaises’ faith flouted the Department’s regulations and policy, and therefore “punished the expression of religious doctrines it believes to be false.”

The Court enjoined the Department from using Policy 6900 against prospective foster parents.

The injunction order is here.