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Category: Child Custody

Brad, Angelina & Florida Custody

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Monday, November 7, 2016.

Brad Pitt is seeking joint custody of his six children in his divorce from Angelina Jolie. Conversely, Ms Jolie has asked for full physical custody of all the children, who are aged eight to 15.

The BBC reports that Ms Jolie cited “irreconcilable differences” when she filed to end the marriage. Reports suggest that Mr Pitt is being investigated over an incident with his eldest son on a plane. A child welfare agency in Los Angeles is examining what happened during the incident on a private flight in mid-September.

California divorce courts generally favor joint custody, but the outcome of the plane row could affect the judge’s decision. The actors may also hammer out a deal privately to avoid the matter being aired in public.

I’ve written frequently about custody in Florida. In Florida, we went through a major transformation of our custody laws in adopting the parenting plan concept, and eliminating the outdated terms of “primary residential parent” and “visitation.”

It is now Florida’s express public policy that children have frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved, and to encourage parents to share the rights and responsibilities, and joys, of childrearing.

There is also 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 today, courts order that the parental responsibility for children be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child.

The BBC article is here.

Custody and Psychological Records

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, October 28, 2016.

In a child custody case, an Indiana court just ruled that a law allowing a psychologist to deny a child patient access to his records does not apply to parents obtaining those records.

The Indiana father wanted to see his child’s mental health records for his custody case, but the doctor and counselor took the position that Indiana law prevented the release of the records based upon the doctors’ opinions.

In Florida, parents are the natural guardians of their children. We generally presume that when children lack the capacity to make certain decisions, their parents – as their natural guardians – make those decisions for them.

But not always. Children have a right of privacy in some decisions, for example the right to seek an abortion, without parental consent, so parents cannot in all circumstances control the exercise of their child’s rights.

I’ve written about children’s issues previously. Children can invoke and waive constitutional rights without their parents. A minor may waive the right to remain silent and the right to an attorney.

For medical decisions specifically, there are several statutory provisions that appear to limit parents’ access to their child’s medical records.

For example, under the Baker Act, a parent, as natural guardian, is entitled access to “appropriate” clinical records of the minor patient. While parents are entitled to hospital records of their children, these records may not always include psychiatric care records.

While, Florida law generally provides for confidentiality between a patient and a psychiatrist at the request of the patient or the patient’s legal representative, can the parents of a child waive that right if the child insists on confidentiality?

The answer may depend on the facts of a given case. Since a child has a privilege in the confidentiality of his communications with his psychotherapist, if his parents are in litigation over the best interests of the child, (such as in a custody case) the parents may not assert or waive the privilege on their child’s behalf.

The Indiana case is here.

Nationwide Custody Reform

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Monday, October 17, 2016.

U.S. News and World Report have an article on child custody reform across the country, and Missouri’s policy to encourages courts to maximize time children have with both parents.

According to the article, research shows that children want open contact with both parents and that meaningful involvement with both parents produces the best outcomes for children.

The idea of shared parenting polls around 70% approval, yet few people realize that shared arrangements are not typical until they or someone close to them go through a divorce. It is a shock how quickly courts separate children and one parent, usually their fathers.

Arizona’s original child custody reform instructed courts to maximize time with each parent according to the best interests of the child. The policy worked well. Missouri’s new policy is a looser version of the policy recommendation Arizona passed.

For all our progress in equality, our courts still assume that children should remain with women and that a consistent physical dwelling is more important than significant and substantial time with both parents.

With an informed judiciary, the “maximize time standard” has seen equal parenting time in Arizona go from a rarity to almost normal and attitudes about parenting have shifted for the better.

One of the most significant impacts of the statute has been the change in terminology from “visitation” and “custody” to “parenting time” and “legal decision-making.

I’ve written about custody issues before. In Florida, we went through a major transformation of our custody laws in adopting the parenting plan concept, and eliminating the outdated terms of “primary residential parent” and “visitation.”

It is not Florida’s express public policy that children have frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved, and to encourage parents to share the rights and responsibilities, and joys, of childrearing.

There is also 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 today, courts order that the parental responsibility for children be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child.

The U.S. News and World Report article is here.

Pakistan & The Hague Convention

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Thursday, September 1, 2016.

Pakistan might sign the Hague Convention on the Civil Aspects of International Child Abduction. What does The Hague have to do with child custody?

In Pakistan, The Hague Convention has received approval almost unanimously by the Cabinet. The only words of reluctance for it have been, predictably, from the Council of Islamic Ideology.

“As with the Women’s Protection Act, and the honor crimes bills, the necessity is to continue on the right path, despite the whimpering and protests of an archaic group.”

The Hague Abduction Convention is a treaty that many countries, including the United States, have joined. The purposes of the Convention are to protect children from abduction by a parent by:

(1) Encouraging the prompt return of abducted children to their country of habitual residence, and

(2) Securing rights of access to a child.

I’ve written about child custody issues before, The basic idea behind The Hague Convention is that child custody and visitation matters should generally be decided by the proper court in the country of the child’s habitual residence.

The Convention does not apply to every international parental child abduction case. First and foremost, your country must be a signatory country to the Convention. Additionally, you must show:

– That your child was wrongfully removed to or retained in another Convention country;

– The Convention was in force between the two countries when the wrongful removal or retention occurred

– The child is under the age of 16 at the time of filing of the application.

Under the Convention, a country may refuse to return an abducted child or grant access to the child if:

– There is a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation in his or her country of habitual residence;

– The child objects to being returned and has reached an age and degree of maturity at which the court can take account of the child’s views; or

– The return would violate the fundamental principles of human rights and freedoms of the country where the child is being held.

In Pakistan, the Convention is required if Pakistani children are stranded abroad and a parent with custody wants to force the child’s return. Many countries – such as the U.S. – advise against traveling to Pakistan because Pakistan is a non-signatory country.

The article in The Nation is here.

Dwyane Wade, Helicopter Parents & Custody

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Monday, August 29, 2016.

Can you lose custody because your kids walk home from school? Ride a bike without supervision? A few unlucky parents have found out. Is life riskier these days, or is there another reason?

Last year, Florida’s Dept. of Children and Families placed two brothers into foster care and then in the care of a relative, Why? Because the 11-year old was found playing basketball alone in his own yard.

A few years ago, a tourist from Denmark left her child in a stroller outside a restaurant while she ate inside got her baby back from foster care yesterday evening, a day after a Family Court judge ordered that the child be returned to her.

Conversely, Dwyane Wade’s cousin was killed last week while pushing her baby in a stroller down the street on her way to enroll a child at the “Dulles School of Excellence” in Chicago’s south side.

In the United States today, leaving children unsupervised is grounds for moral outrage and can lead to a DCF investigation, family court custody problems, and even criminal charges.

On the one hand, as the story about Dwyane Wade’s cousin shows, what was safe in the past may be risky today; placing children in genuine danger. However, statistics from the National Crime Victimization Survey suggest that violent crime rates have decreased since the 1970s.

The odds that a child will be killed or abducted by a stranger – one of the fears that motivates constant supervision – are tiny in comparison with the odds that a child will be injured in a car accident. Yet parents aren’t under investigation for choosing to drive their kids to school.

I’ve written before about the Constitutional rights of parents. Overregulation of parenting choices may violate the parents’ rights. In Troxel v. Granville, the U.S. Supreme Court reaffirmed the “fundamental right of parents to make decisions concerning the care, custody, and control of their children.”

Unfortunately, Troxel is not a case often cited in family court cases, may be ignored by DCF, and most parents lack the resources to fight prolonged legal battles to vindicate their rights.

What are acceptable forms of parenting in the U.S. has shifted strongly in favor of Helicopter parenting, emphasizing protection of children from risks of harm. In a custody hearing, who wants to defend being the Danish parenting attitude?

Recently, a counter trend has emerged. Some parents argue that over-parenting to protect against remote and risks of harm may expose children to more serious risks to their well-being and development.

The Yahoo News article is here.

New School Year, Old Custody Battle

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Thursday, August 25, 2016.

Child Custody disputes about vaccinating children are back with the start of a new school year. Florida allows religious exemptions from vaccines, but California recently eliminated all religious exemptions.

Hundreds of parents are protesting California’s new state law that took effect recently, and requires vaccines for nearly all schoolchildren.

SB 277 mandates vaccines for 10 different diseases, and blocks them from attending school if their parents refuse. Experts say those who resist are putting their children at risk.

I’ve written about the interplay between custody and vaccines before. The issue is the intersection of parental rights and religion.

Unlike the new California rule, Florida still provides for a religious exemption if vaccinations are in conflict with the religious tenets and practices of the child’s parent or guardian.

Vaccine disputes are high stakes cases because of the public health issues involved. Americans are again getting sick and dying from vaccine preventable diseases which were once a thing of the past – including measles, mumps and whooping cough.

The CDC is reporting that during 2012, 48,277 cases of pertussis were reported to CDC, including 20 pertussis-related deaths. This was the most reported cases since 1955. The majority of deaths occurred among infants younger than 3 months of age.

There are only two vaccination appellate decisions in Florida, and the facts in each are strikingly similar. In both cases, the parents shared parental responsibility. Both involved chiropractors as parents who were involved in their children’s health care.

Moreover, in both cases the health care professional parent opposed vaccinations. Ironically, the outcomes in the two cases were very different.

Vaccination disputes are interesting and high-stakes cases to watch for as the new school year approaches.

The ABC news article is here.

Child Custody & Special Needs

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Monday, August 15, 2016.

Children with disabilities have special needs in child custody cases. These needs can include increased expenses and multiple specialists which can dramatically impact timesharing.

Researchers have found that parents of children with disabilities are much likelier to divorce. That is due, in part, to the fact that a child with a disability has multiple needs.

It is not unusual for parents to schedule appointments with multiple schools, specialists, doctors and therapists. This can also mean significant expenses that parents of other children never have to consider.

In Florida, for purposes of establishing a parenting plan, including a time-sharing schedule, the best interest of the child is always the primary consideration.

But determining the best interests of a child with special needs requires courts to evaluate all of the usual factors, and evaluate the factors affecting the welfare and interests of a child with special needs.

For instance, our statute requires the court to consider the developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.

In relocation cases in particular, the Florida legislature requires courts to consider any special needs of the child in determining if moving away is in the child’s best interest.

I’ve written about custody before. Some things to consider when determining legal custody for a child with special needs, include:

* The frequency in the selection of doctors, specialists or evaluators as well as the frequency of required medical care and expenses – and each parent’s availability to facilitate that.

* Placement of the child into specialized programs or the need for special education services in the child’s school.

* The child’s school district becomes important because school districts have certain responsibilities and obligations to a child with special needs under state and federal law.

* The number of decisions to be made, and the speed necessary for children with disabilities, can make going to court for a resolution very ineffective for meeting the best interest of the child.

* Flexibility, which works well for many parents, may not work well for children with autism, for example, in which rigidity and predictability should be favored over frequent transitions.

Legal and physical custody issues involving special-needs children can best be resolved when the divorcing parties work together.

The ABA article is here.

Child Custody Decision: Homeschool or Public School?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Sunday, March 27, 2016.

A Mother wants to homeschool her daughter. The Father wants the child to attend public school. A Pennsylvania appeals court had an interesting ruling on that child custody dispute.

The Mother and Father have a daughter. By order of the trial court, dated September 29, 2008, the Mother and Father shared legal custody, and Mother had primary physical custody. Then inn February 8, 2011, the Father’s legal and physical custody rights were suspended.

The Mother is very religious, and believes that those who do not practice her conservative Christianity are inherently immoral and corrupt. Her child has historically has been isolated, and her only significant source of interaction has been in the context of church.

The father argued that Daughter should be sent to public school because of his disapproval of mother’s religion, and his skepticism about religion.

On July 27, 2012, the child’s attorney requested that the child continue enrollment in public school, and the trial judge ordered her to matriculate in the Fairfield School District.

I’ve written about child custody decisions and homeschooling before. In this case, the Mother appealed, and the Pennsylvania Court of Appeals reversed. With any child custody case, the Pennsylvania Court, as do the Florida courts, applies the best interests of the child standard.

This standard requires a case-by-case assessment of all of the factors that may legitimately affect the physical, intellectual, moral and spiritual well-being of the child.

The Mother argued that the trial court was dictating to her how to raise her daughter.” She contends she should be able to home school her child to protect her from negative influences in public school.

The appellate court concluded that the Father and guardian failed to establish that public school was in the child’s best interest. It noted a lack of evidence about the academic appropriateness of home schooling, despite the fact the child wanting to attend public school.

One judge went so far as to concur, stating

We would do Children more harm than good by assuming the day-to-day parenting decisions, a function we are ill-equipped to carry out…. To decide otherwise is to inappropriately micromanage this family.

There is no Florida case on point, but the Pennsylvania case and a Kansas case are probably the correct approach.

One thing to avoid is allowing family court judges to rely on their feelings of whether homeschooling is better or worse for children. A judge has to base the decision on substantial and competent evidence in the record.

The opinion of the Pennsylvania Appellate Court is here.

Parent Free Speech: Can the Judge Gag You?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, March 18, 2016.

Can a child custody judge order you not to speak to your children about something? A Washington mother just found out the hard way.

I’ve written about free speech and divorce after a Venezuelan mother was ordered not to speak Spanish to her child. But, what about the content of your speech, can a judge stop you from talking?

A Washington State husband, Charles Black, learned a surprise from his wife, Rachelle Black. They were married for 7 years, had three children, and raised their children in a conservative Christian home; sending them to religious-based schools.

Seven years after marriage, Rachelle told Charles that she was gay, and began a romantic relationship with another woman. Two years later, Rachelle filed for divorce.

Rachelle told the children she was gay, gave her oldest child a book about sexuality and faith, and showed the two oldest children a documentary about a transgendered child.

The trial judge felt it will be too challenging for the children to reconcile their conservative religious upbringing with the changes occurring within their family’s sexuality, and ordered

“that the mother refrain from having conversations with the children regarding religion, homosexuality, or other alternative lifestyles”

The Washington Court of Appeals reversed:

Our courts have upheld restrictions on certain types of unprotected speech when they have served the best interests of the child. But while the welfare of children is the State’s paramount concern in dissolutions, restraining speech merely based on content presumptively violates the First Amendment . . .

[E]ven in the context of family law, content-based speech restrictions are presumptively unconstitutional.

The trial court also gave the Father ultimate decision making for the children’s religious upbringing, and the court reversed that ruling too:

There must be a substantial showing of actual or potential harm to the children from exposure to the parents’ conflicting religious beliefs; this harmonizes the children’s best interests with the parents’ constitutional rights to free religious exercise.

The opinion of the Washington State Court of Appeals Division Two is here.

Madonna, Custody & Education

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Monday, February 8, 2016.

Madonna and her ex-husband are locked in a child custody battle over their son. Surprisingly, the child’s education is the big issue being fought over. How does a court resolve education disputes?

Madonna and Guy were divorced in 2008. They have a son together. A Manhattan Civil Supreme Court judge ordered the son to return to Madonna in New York. The 15-year-old has been living with his father at his London home.

The child is rumored to want to live with his father. Madonna thinks the father is turning her son against her:

“He’s telling Rocco he should stay with him. It seems like he’s trying to brainwash the kid.”

The fight is centered around parenting-styles: how much pressure about education should be placed on their son. He is set to take the Regents, the high school qualification exams in New York.

The Father has publicly stated he is “anti-school,” and “anti-people putting so much pressure on kids and robbing their childhood by giving them so much homework. I think if kids want to arse around, then they should.”

Conversely, Madonna pays attention to education and discipline (like taking away cellphone use). Her discipline may be influencing her son, who now wants to be with his more lenient father. Madonna’s daughter attends the University of Michigan.

I’ve written about custody 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.

Madonna and Guy are due in New York Supreme Court on March 2 to sort out these custody decisions.

The Us Magazine article is here.