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Vaccinations and Custody

Posted by Ron Kauffman on

In Michigan, a judge reduced a mother’s child custody rights after she refused to vaccinate her son. What is the relationship between custody and vaccinations?

Michigan’s Vaccination Case

In Michigan, Oakland County Judge Karen McDonald ruled Wednesday that Rebecca Bredow will no longer have primary custody of the boy but will have joint custody with her ex-husband, James Horne.

Horne wanted to vaccinate the boy, and Bredow agreed to do so last November. But she didn’t. She says vaccinations go against her religious beliefs.

Custody and Vaccinations

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.

Florida Vaccinations

I’ve written about the decision to vaccinate and 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.

There are at least two cases in Florida dealing with the decision to vaccinate and custody, and they conflict!

In one case, a Florida court heard the conflicting positions on immunization and decided that it would be in the child’s best interest to allow the anti-vaccination Mother to make the ultimate decision regarding the child’s immunization.

Ten years later, a different Florida court heard conflicting testimony, and decided it was in the child’s best interest to award the pro-vaccination Father ultimate responsibility to make decisions regarding the minor child’s vaccinations.

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

Vaccination and Jail

Back in Michigan, Judge McDonald found Bredow in contempt of court last week and ordered her jailed. She also granted temporary custody to Horne and ordered the boy to be vaccinated. He received four immunizations on Monday.

Bredow told reporters Wednesday she was “in shock” by the court’s decision. Her attorney plans to appeal.

Spanking and Child Custody

Posted by Ron Kauffman on

‘Spare the rod spoil the child’ sayeth Proverbs. Canada is still debating a bill in their parliament to outlaw spanking. Can you spank without fear of losing child custody or it impacting time-sharing in Florida?

Spanking Worldwide

A bill to criminalize spanking returned to the floor of the Canadian Senate in late February of this year, and this week is currently on its second reading. If S-206 passes, it will go to the House of Commons, where the Liberal majority has pledged its support.

According to the U.N., Slovenia is the 51st state worldwide to fully prohibit all corporal punishment of children, the 30th Council of Europe member state, and the 21st European Union state to do so.

The bill’s original sponsor believes that spanking harms children’s psyches. But those who believe disciplining children with spanking should be an option, are worried that their actions could lead to criminal charges against parents and child seizures by the government.

Spanking in Florida

In Florida you’re not supposed to hit your children. Florida has strong laws for the protection against domestic violence. Domestic violence includes any assault, battery or any other offense resulting in physical injury of a family member by another family member.

However, parents have to discipline their children, and as the good book says, he who loves his child is careful to discipline him. I’ve written about spanking and custody before. In Florida, parents have a right to discipline their child in a reasonable manner.

A parent’s right to administer reasonable corporal punishment to discipline a child is not a crime when it does not result in harm to the child.

Harm, by the way, does not mean just bruises or welts for instance. Harm also means that the discipline is likely to result in physical injury, mental injury, or emotional injury. Even if you don’t physically harm a child, your actions could be criminal.

Florida’s parental privilege to use corporal discipline does not give absolute immunity either. Your run-of-the-mill spanking may be protected from charges of child abuse, but punching your child, pushing him onto the floor and kicking him is not.

So, is it open season on kids? Hardly. Guardians and judges are analyzing you, and you don’t want to start off your custody case explaining why you beat your kids. The excuse: “this fellow does what the bible says” will not score a lot of points in a courtroom.

Besides, some studies suggest that time-outs work just as well as spanking for immediate punishment, and that for long-term effectiveness, spanking decreases compliance. Worse, spanking may increase child aggression.

While there are some limited privileges for discipline, there are major risks to your custody case, your criminal defense case, and most importantly, to your children.

Back in Canada

Some in Canada argue that the bill lumps child discipline and child abuse into the same category. Were the children of spanking parents more violent because of spanking, or did their parents spank more than others because their children were more violent?

The Lifesitenews article is here.

 

Religious Upbringing and Divorce

Posted by Ron Kauffman on

Divorce agreements can dictate the religious upbringing of a child: which church to attend, or how strict a religious education should be. What happens after divorce if an ultra-orthodox mother concludes she is a lesbian and wants to live a normal life?

The New York Case

In last week’s New York case involving the Weisbergers, the parents agreed to give the children a Hasidic Jewish upbringing in all details, in the home or outside of home, including which school the children attend.

Three years after the divorce, the mother came out as a lesbian, disparaged the basic tenets of Hasidic Judaism, allowed the children to wear non-Hasidic clothes, permitted them to violate the Sabbath and kosher dietary laws, and referred to them by names that were not traditionally used in the Hasidic community.

The trial judge ruled in favor of the father, circumstances had changed so much that he should have sole custody because of the mother’s transition from an ultra-Orthodox Hasidic lifestyle to a “more progressive, albeit Jewish, secular world.”

The court noted that the mother’s conduct was in conflict with the parties’ agreement, which “forbade living a secular way of life in front of the children or while at their schools.” The court posited that had there been no agreement it might have considered the parties’ arguments differently.

Florida Religious Upbringing

In Florida, there is no provision in our laws purporting to authorize such judicial enforcement in married parents. Religion and divorce is a matter I’ve written on before.

In a divorce action, the court’s powers over custody of children are found in the Florida Statutes. When a court is required to decide an issue as to the custody or support of minor children, the sine qua non of the exercise of those powers is the best interests of the child.

There is absolutely nothing in the statutory listing that expressly makes the religious training of the child a factor that the court should consider.

The Florida Statutes command all parents to confer on all major decisions affecting the welfare of their child, and to reach an agreement as to any required decision.

When the matter involves the religious training and beliefs of the child, courts cannot make a decision in favor of a specific religion over the objection of the other parent. Generally, a child’s religion is no proper business of judges.

New York Law Changes

The appeals court in New York reversed the father having sole custody of the children, and final decision-making authority over medical, mental health issues, with supervised therapeutic visitation to the mother.

When presented as an issue, religion may be considered as one of the factors in determining the best interest of a child, although it alone may not be the determinative factor.

Clauses in custody agreements that provide for a specific religious upbringing for the children will only be enforced so long as the agreement is in the best interests of the children.

Importantly, no agreement of the parties can bind the court to a disposition other than that which a weighing of all of the factors involved shows to be in the children’s best interest.

The Washington Post article is here.

 

Anatomy of Sole Custody

Posted by Ron Kauffman on

Grey’s Anatomy star, Jesse Williams’ estranged wife, Aryn Drake-Lee, is requesting sole custody of the couple’s two children, citing the actor’s unpredictable work schedule, a dangerous driving incident and his alleged “revolving door” of women. When is sole custody awarded in court?

According to news reports, in court documents filed on August 11, the real estate broker claims that she is responsible for the day-to-day care of the kids because of the Grey’s Anatomy star’s busy schedule.

“Jesse would ‘join in’ when he was available and home, but he rarely took care of the children without my or the nanny’s help and presence,” the documents say.

“Jesse became distant, secretive and was home less and less, traveling for unexplained reasons while telling the kids, ‘Daddy is at work.’ We tried marriage counseling in the fall of 2016, but were unsuccessful. Jesse eventually moved out at the end of March 2017.”

Florida Sole Custody

The question about an award of sole custody of children frequently comes up in consultations, 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.

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.

How do you get sole custody in Florida?

Sole parental responsibility, or sole custody as people generally call it, has been made more difficult to obtain. Florida’s public policy is for each child to have frequent and continuing contact with both parents after a divorce.

Because of Florida’s public policy, courts order shared parental responsibility unless the court finds that shared parental responsibility would be detrimental to the child.

In those cases where detriment is proved, the court orders sole parental responsibility to one parent, with or without time-sharing with the other parent, if it is in the best interests of the minor child.

The Anatomy of Sole Custody

Drake-Lee allegedly claims in court documents that her husband has “not recognized and prioritized the children’s schedule over his own and their need to maintain it daily, even on weekends, whether or not a parent is working.”

She also claims that her ex does not make the children’s school pick-up and drop-off a priority, and tries to make the nanny drive the kids, although that’s not what she was hired to do.

However, in previous court documents Williams has claimed that Drake-Lee has declined his requests to spend more time with the children. “Aryn restricts my time with the children and decides when, and for how long I may have them,”

The US Weekly article is here.

 

Can Low Intelligence Cost You Custody?

Posted by Ron Kauffman on

Amy Fabbrini and Eric Ziegler are fighting to prove to the state of Oregon that they can raise their children. Oregon removed their boys, saying the parents are too mentally limited to parent. Can your intelligence be a factor in determining child custody?

Fabbrini, 31, and Ziegler, 38, lost custody of their older son, Christopher, shortly after he was born. Five months ago, the state took their second child, newborn Hunter, directly from the hospital. Both are now in foster care.

“I love kids, I was raised around kids, my mom was a preschool teacher for 20-plus years, and so I’ve always been around kids,” Fabbrini said. “That’s my passion. I love to do things with kids, and that’s what I want to do in the future, something that has to do with kids.”

No abuse or neglect has been found, but each parent has a degree of limited cognitive abilities. Rather than build a network of support around them, the state child welfare agency has moved to terminate the couple’s parental rights and make the boys available for adoption.

The case lays bare fundamental questions about what makes a good parent and who, ultimately, gets to decide when someone’s not good enough. And it strikes at the heart of the stark choices child welfare workers face daily: should a child be removed or is there some middle ground?

Florida Child Custody

The Oregon case involves child protective services operating through dependency court. A child is generally found to be dependent if the child is found to be abandoned, abused, or neglected by the child’s parent or parents or legal custodians.

In Florida family court cases, as opposed to dependency court cases, 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.

I’ve written about child custody cases before. Generally, 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 20 statutory factors, and one equitable catch-all factor, affecting the welfare and interests of the child and the circumstances of the child’s family.

Although the parent’s intelligence or IQ score is not specifically mentioned in our custody statute, the statute requires courts to consider the mental and physical health of the parents.

The Oregon Case

Back in Oregon, the parents are struggling against a system that feels impersonal, unyielding and inscrutable.

“They are saying they are intellectually incapable without any guidelines to go by,” said Sherrene Hagenbach, a former volunteer with the state agency who oversaw visits with the couple and Christopher from last June through August.

According to documents provided by the couple, psychological evaluations tested Fabbrini’s IQ at about 72, placing her in the “extremely low to borderline range of intelligence,” and Ziegler’s about 66, placing him in the “mild range of intellectual disability.” The average IQ is between 90 and 110.

“I have a learning disability, but it’s very, very mild,” Ziegler said. He understands that he learns more slowly than some, but says “everybody learns at their pace.”

Neither currently works, but they have steady housing: a three-bedroom, 1,200-square-foot home owned by Ziegler’s parents, who live out of state. Ziegler has a driver’s license. Both have standard high school diplomas.

Across the country, a national study estimates that somewhere between 40 percent and 80 percent of parents with intellectual disabilities lose their parental rights.

The Oregon Live article is here.

 

Upcoming Talk on Parenting Plans

Posted by Ron Kauffman on

For readers who may be interested, on June 16, 2017, I will be speaking about child custody and time-sharing at the Florida Bar Family Law Section’s seminar on Process and Procedures: “Be on Top of Your Game” at the Hilton West Palm Beach.

I will be discussing the subject of parenting plans with noted psychologist, Dr. Sheila Furr, PhD. Dr. Furr is a licensed psychologist in Florida and California and is Board Certified in Clinical Neuropsychology by the American Board of Professional Neuropsychology.

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.

To register online, log into The Florida Bar Members Portal, click on Meetings/CLE Events.

The course brochure is available here.

For more information on this and other events, visit the Florida Bar Family Law Section website.

 

Child Custody, Sex, and Religion

Posted by Ron Kauffman on

Should a judge make a child custody decision based on how much sex you are having? What about attending church, should that be a factor? A woman in Massachusetts learned the hard way that lifestyle choices matter.

Case History

The couple met when she was just 16, and the husband was 21. Initially, the wife lived with her mother and the husband lived with his parents. But the wife was “kicked” out of her home when her parents found out about her relationship, and she was moved into foster care.

The couple married after they found out she was pregnant, and separated right afterwards. During the trial, the family court judge granted custody to the father.

The judge made several factual findings in her decision about the child’s Catholic baptism, the husband’s Catholic background, and the wife’s lack of religious affiliation, even though religious upbringing was not an issue in the case.

The judge also detailed the frequency of sexual relations during the parties’ marriage, the wife’s sexual activity and abortion before she met the husband, and the wife’s sexual activity after the separation. The Wife appealed.

Florida Child Custody

I’ve written about the intersection of religion and custody a few times. Religion, religious beliefs, and religious practices are not specific statutory factors in determining parental responsibility.

Nor are religion and religious practices areas in which a parent may be granted ultimate responsibility. Instead, the weight religion plays in custody disputes changed over time in various cases.

Currently in Florida, child custody decisions are based in accordance with the best interests of the child. One of the express factors a court has to consider in making a child custody decision is the “moral fitness of the parents.”

As it relates to religion though, Florida courts have decided that, in general, there must be a clear, affirmative showing that religious activities will be harmful to the child for the religion to be a factor.

Merely weighing that one parent is church-going, while the other parent is not, does not fit in with the current standard in Florida about whether or not the religious practice, or lack of religious practice, is harmful to the child.

Epilogue

After the Wife in the Massachusetts case received the final judgment, in which she lost custody of the children to the Husband – in part of her sexual promiscuity and lack of religion – she appealed. The appellate court reversed.

The appellate court decided that the family law judge should not have considered the wife’s sexual history, as it was irrelevant to the division of care-taking responsibilities and the warmth of the child’s relationship with the parents.

The Massachusetts appellate court opinion is here. The Volokh Conspiracy article is here.

 

Marijuana and Child Custody

Posted by Ron Kauffman on

Comedian Ralphie May and his wife filed for divorce. She is getting temporary sole child custody, and the comedian will take random drug tests twice a month. This raises the issue of substance abuse and child custody.

Marijuana and Child Custody

The couple has two children together, an 8-year-old daughter and 6-year-old son, and co-starred in their own podcast called Perfect 10. Turner wants sole physical custody and joint legal custody of the kids, plus spousal support from May.

The judge in their divorce has provided timesharing in the case. However, the judge only granted Ralphie two weekly visits with his children, and one Skype call. Additionally, a court appointed monitor must be present for the first 3 weeks.

Ralphie, who’s made no secret of his love of marijuana, has agreed to submit to random drug tests twice a month. Ralphie rose to fame after he won the runner-up spot on the first season of Last Comic Standing.

However, in January, he had to be escorted out of his own show by police after being too high on marijuana to continue.

Pot’s Growing Acceptance

I have written about the use of marijuana in custody cases. No data exist to show how often marijuana use comes up in custody disputes, or how often child welfare workers intervene in homes where marijuana is used.

But in dozens of interviews, the consensus is clear: marijuana’s growing acceptance is complicating the task of determining when kids are in danger. Right now, Florida’s legislative session is underway, and marijuana is being debated.

Medical marijuana implementation plans are being introduced and discussed in both chambers of the Florida Legislature. Florida’s Amendment 2, which was favored by 71% of voters in November 2016, may expand the previously limited Florida medical marijuana law.

Florida has not legalized recreational marijuana. Twenty-six states and the District of Columbia currently have laws broadly legalizing marijuana in some form. Seven states and the District of Columbia have adopted the most expansive laws legalizing marijuana for recreational use.

Most recently, California – where May and Turner filed for divorce – passed a measure in legalizing recreational marijuana use the way Colorado considers marijuana use legal.

Marijuana is still listed as a Schedule I controlled substance, like heroin, under federal law.

Whether you are a parent with a medical marijuana prescription, the analysis of whether your custody case can be impacted by smoking pot will depend on the facts and circumstances of your case. There is no hard and fast rule for the use of medical marijuana by parents involved in a custody dispute.

Florida Child Custody & Pot

Compare pot smoking to drinking alcohol. It is legal for adults to consume alcohol, to drink alcohol at home, and to have alcohol present in their home.

However, the State of Florida may lawfully remove children from their parents if a court determines that the children have been exposed to alcohol abuse, or there is a threat of, or injury as a result of the use of alcohol.

In divorce and child custody cases, one of the factors judges in Florida look to is whether or not a parent has the demonstrated capacity and disposition to maintain an environment for the child which is free from substance abuse.

The Florida statute does not distinguish between legal and illegal substances. Our law only considers whether substances are abused or not. So, marijuana, even if legal for recreational or medical uses, can still be a factor in your child custody case.

The TMZ article on Ralphie May’s divorce is here.

 

Three Parent Custody Cases

Posted by Ron Kauffman on

A Long Island couple, and a neighbor with whom they had a threesome, have been granted custody of their 10-year-old son to three parents in a groundbreaking ruling.

New York residents Dawn and Michael Marano, married in 1994. They had a conventional marriage, until they befriended downstairs neighbor Audria Garcia in 2001.

Garcia had been living with her boyfriend, but when they split up, she moved upstairs and “began to engage in intimate relations” with the Maranos.

No one told these three people to create this unique relationship Suffolk County Supreme Court Judge H. Patrick Leis III wrote in the ruling for the first-of-its-kind case in New York. It was agreed, before a child was conceived, that [the Maranos and Garcia] would all raise the child together as parents.

The threesome was one big happy family for 18 months, until Garcia and Dawn Marano decided to become a twosome and left Michael. They moved out and into a new home nearby in 2008.

Then Michael Marano sued Garcia for custody of their son. Dawn Marano then sued her husband for divorce. Michael Marano and Garcia agreed to joint custody, but Dawn felt left out.

As neither a biological nor adoptive mom to the boy, Garcia had no automatic legal right to custody. Although she still lives with the mother, Dawn Marano.

Dawn Marano then filed another suit “to secure custody rights because she fears that without court-ordered visitation and shared custody, her ability to remain in the child’s life would be dependent on obtaining the consent of either Audria or [Michael],” Judge Leis explained.

In awarding Dawn Marano shared custody, Leis cited a ruling by New York’s highest court that allowed non-biological or adoptive parents to seek custody of a child if they had a prior relationship with that child.

While the two women are “absolutely thrilled” with the ruling, the New York Post reports that the father, Michael Marano, intends to appeal.

I’ve written about custody issues in Florida before. In one Florida case a man reached a verbal agreement about donating sperm for his two same-sex female neighbors, who would raise their child together.

But shortly before the baby was born, the Father decided he wanted to be considered a parent and not a sperm donor. The women disagreed. Under Florida law, sperm donors have no legal rights to children.

Under the Florida judge’s decision, the two women will have sole parental rights, although the Father will be allowed to visit the child. He will not be expected to provide child support.

The New York Post article is here.

Shaming Your Child on Facebook

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, February 3, 2017.

Should you use Facebook to publicly shame your child in a child custody dispute? Seems like an obvious question, but one a Louisiana appellate court recently answered.

According to the opinion of the Louisiana First Circuit Court of Appeal, a mother complained when a trial judge failed to stop the father and his new wife from posting embarrassing photos about the minor child on social media.

The Mother sought the injunction based on an incident wherein Jason Tinsley, as a means of punishment, forced the minor child to post a picture of herself on her Instagram account holding a sign that said:

“I WILL BE A LEADER, NOT A LIAR!!”

In addition, Jason Tinsley and his wife posted the same photo on their Instagram and Facebook pages, with Jason Tinsley making this photo his profile picture on his Facebook page.

The mother contended that this form of discipline was inappropriate, humiliating, and demeaning, and they should be prohibited from posting such pictures on social media accounts.

The trial court denied her request for the injunction. The appeals court affirmed the trial judge’s decision. The court found that there was no irreparable injury, loss, or damage that could result to Nicole Tinsley or the minor child.

I’ve written about child custody issues before. In Florida, all matters relating to parenting and time-sharing of each minor child of the parties is made in accordance with the best interests of the child.

While the Louisiana appellate court affirmed, it did find that the father’s use of social media – particularly his forced takeover of and publishing of content on a minor child’s social media account – was clearly improper and inappropriate.

Jason Tinsley staged an intentionally embarrassing picture of the minor child, he then posted the embarrassing picture of the minor child on his social media accounts, and he forced the minor child to post (or publish) the embarrassing picture of herself on her own social media account, all of which was for the sole purpose of punishing the child by notifying the child’s family and friends (and Jason Tinsley’s family and friends) of the child’s transgression – an apparent lie about a boy being at a public park while the child was at the same park with a friend.

The court held:

It is hard to imagine a more improper or inappropriate use of social media by a parent than to use it punitively to publicly humiliate a minor child by requiring a child to publish a photograph of herself wearing the modem day equivalent of a scarlet letter to thereby notify the public of her wrong.

A discussion and link to the decision is available here.