Tag: Child custody and education

Your OnlyFans Account Could Cost You Child Custody

Family lawyers are concerned with our clients’ online activities. That’s because it is not only your fans looking at your social media and other accounts. If your Ex discovers you are selling sexually explicit material of yourself on OnlyFans it could cost you child custody as one woman in Philadelphia found out.

Onlyfans child custody

City of Brotherly Love?

The Father and Mother were married for less than two years and had separated before their Child was born.  Since 2014 the couple shared legal custody. The Mother had a majority of the time, and Father had alternated two or four nights per week.

In 2020, Mother filed a petition to modify custody, alleging their Child was involved in two car crashes while being driven by Father’s new wife.

At the hearing, the Father defended by complaining to the court the Mother was posting sexually explicit photographs of herself on her OnlyFans website. The Father also made a ChildLine report about the Mother’s behavior.

The trial court immediately terminated the Mother’s contact with Child and ordered a forensic interview with Child. The court held that if the forensic interview revealed the Child was not aware of Mother’s OnlyFans activity, she would be granted supervised telephone calls – but no in-person contact pending a future court order!

However, if Child was aware of the Mother’s online activities, then Mother would be denied all contact with Child. The order also required the Mother to delete her OnlyFans  account and submit to a psychological evaluation.

The Mother filed a petition for emergency hearing after Children and Youth Services showed no sign of child abuse or that Child was aware of the Mother’s OnlyFans activity. The Mother’s petition was denied, but she was given back partial physical custody of Child every other weekend from Friday to Sunday evening, with Father retaining sole legal custody.

In 2020, Mother asked to modify the order asking the court for both shared legal and physical custody. In 2023, the family court awarded shared legal and physical custody of Child. At the hearing, the judge found there was no evidence that OnlyFans activity caused Child any harm, and ruled that the court was not permitted to “judge a parent’s private adult behavior outside the presence of the child”.

The Father appealed.

Florida Child Custody and OnlyFans

I’ve written about child custody issues before. In Florida, “custody” is a concept called parental responsibility, which can be either shared between parents, or one parent  can be given sole responsibility.

In child custody 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. This year, Florida enacted a law making a rebuttable presumption that equal time-sharing of a child is in the best interests. To rebut this presumption, a party must prove by a preponderance of the evidence that equal time-sharing is not in the best interests of the child.

Determining the best interests of a child is not 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 moral fitness, and the mental and physical health of the parents.

Not Only Fans

On appeal, the Father argued the family judge did not appropriately consider Mother’s “poor life choices” when granting Mother shared legal and physical custody of Child based upon her prior OnlyFans site.

The appellate court noted the OnlyFans account was deleted in 2020, she has never posted adult content on any other site, her interactions with her patrons on the site were entirely virtual and solely through her pseudonymous username, and she never created content in her home when the  Child was present.

Additionally, the child investigation revealed that Father’s child abuse report was “unfounded.” In reviewing the best interests of the child factors in Pennsylvania, the trial court found that “none of the custody factors include the morality of a parent’s judgment or values.”

The trial court then determined that Mother’s OnlyFans activities were irrelevant to the court’s custody analysis because Father failed to establish the Mother’s activities on OnlyFans caused Child any harm. The record showed the Child was not aware of Mother’s activities. The Father presented no evidence to prove otherwise, and did not present evidence showing Mother’s OnlyFans activities raised any safety concerns because the Mother participated anonymously with her location shielded.

The appellate court agreed that a parent’s morality is not an enumerated custody factor in Pennsylvania, and the Court correctly rejected consideration of a parent’s morality or sexual lifestyle when determining custody where there was no finding of an adverse impact on the child.

The opinion is here.

Religion Custody and Transgender Children

Whether a parent’s religion and religious beliefs can impact their ability to exercise child custody over transgender children is in the news. In Maryland, a father’s strict religious beliefs clashed with his children’s sexual orientation so much, the court had to step in to resolve the issue.

custody transgender

Fatti Maschii, Parole Femine

A Maryland couple with two children divorced in 2012. As part of their settlement, the parents agreed to joint legal custody. The Mother was to have primary physical custody, and the Father agreed to visitation every other weekend.

In 2022, Mother filed for a protective order for herself and on behalf of her two children, then aged 15 and 12. The Mother alleged the Father had caused her and the children mental injury based on abusive texts and emails he had sent to them.

At the injunction hearing, the Mother testified her older son told her he believed he was transgender. The Mother denied steering him toward identifying as transgender, but admitted she actively supported him by arranging for therapy and attending meetings of Parents, Families, and Friends of Lesbians and Gays.

When the child told his Father that he identified as transgender, the Father opposed his son’s decision and refused to call him by his preferred name. Then the child began engaging in the self-harming behavior of “cutting.”

The Father then texted his child:

“What is your email address? I’m sending you an email and I’m copying your mother and my lawyer. I’m t[ir]ed the BS manipulations. Your grandmother doesn’t call you S[.] and neither does either one of your aunts and uncle up here and for some reason my Christian beliefs are being attacked, so the intent is for a trial, so that everyone can understand what your mother that has manipulated a wedge after you and I had already came to an agreement [to call you a shortened version of your given name]. Thanks[.]”

Then the Mother testified that their second child, the younger of the two, told her he believed he was gay. The Father texted the younger child:

You can text me anytime. Just between us and call if you ever need to talk. I will tell you like I told you before—you are being heavily manipulated and influenced by your mother and sister. Son. Listen to your dad and our father who created us (God) in this matter. Please please do not allow these demons you are surrounded by influence you. Pray my son. For protection. I love you. Dad.

Father admitted: his relationship with his children is contentious, that he called the police after Mother took the children to a Pride Parade, and that he then called the Crisis Hotline and Legal Aid. He testified that he is concerned for his children’s souls and has no intent to harm them.

The trial judge found that, while the older child was “worried” he was not upset. However, the court found the younger child was “frightened” by Father’s behavior and “worries” that Father does not believe him about his sexual identity, believing instead that it has to do with Mother’s manipulation.

The court entered the protective order as to the younger child and denied the petition as to Mother and the older child. The Court prohibited the Father from abusing or threatening to abuse the younger child; from entering his residence; limited his visitation, and prohibited the Father from sending abusive texts about sexual orientation and/or religion. Father appealed.

Florida Child Custody

I’ve written about child custody and transgender issues before. Florida, unlike Maryland, does not have legal custody, but the parenting plan concept. For purposes of establishing a parenting plan, the best interest of the child is the primary consideration.

In Florida, the best interests of the child are determined by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family. Some of the factors a Florida court looks to include the demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, and the mental and physical health of the parents. None of the statutory factors involve the gender or sex of the parent and child.

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

Child abuse is a defined term in Florida. In part, child abuse can mean injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment in the ability of the child to function within the normal range of performance and behavior as supported by expert testimony.

Strong Deeds, Gentle Words

In Maryland, the primary goals of their injunction statute are preventative, protective and remedial, not punitive. A judge may issue a protective order if they find abuse. In Maryland, “abuse” of a child is defined as the physical or mental injury of a child under circumstances that indicate that the child’s health or welfare is harmed or at substantial risk of being harmed.

On appeal the Father argued there was insufficient evidence to find that he caused mental injury to his younger child, or that he did so intentionally. But the appellate court ruled it was the younger child’s fear regarding Father’s views about his sexual orientation – and the Father’s seeming inability to see that his views caused and could cause a substantial risk of harm to his son – that the trial court had attempted to address in its order. Accordingly, the trial court’s restraining order was affirmed on appeal.

The unpublished Maryland appellate court opinion is here.

 

Calling a Stepparent Dad

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

Stepparent Name

Name Calling

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

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

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

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

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

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

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

Florida Parental Responsibility and Stepparents

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

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

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

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

The Constitution and Names

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

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

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

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

The family judge ordered:

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

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

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

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

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

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

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

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

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

The opinion is here.

Sex Talk and Modifying Child Custody

In the wake of a new Florida law protecting a parent’s rights not to teach sex education, comes a case in which too much sex talk ended up modifying one parent’s child custody. Recently, a Michigan family law case drew a line between educating your children about sex and inappropriate conversations.

Sex Talk child custody

The ‘Birds and the Bees’

The parents have four children: three daughters and one son, and they have been divorced since 2018. They were awarded joint legal custody of the four children with a split: One parent had the boy, and the other parent had the three girls

In 2021, Father asked to change legal residence, parenting time, and custody relative to EJ and JJ, requesting that the trial court award him primary physical custody of the two children and that the court change their legal residence from Petoskey to his home in Plymouth, Michigan.

The Mother opposed the motion. During an evidentiary the Father introduced several exhibits, including a recorded conversation between the Mother and the three daughters indicating that she had inappropriate conversations with the children, had difficulties controlling her anger, used vulgarities and profanity in conversations with the children, and consumed an excessive amount of alcohol during parenting time.

After the evidentiary hearing, the referee recommended that the trial court deny the motion. The Father filed an objection which was heard by the trial judge in a de novo hearing. The Father argued he was not given sufficient time to present evidence necessary to meet the burden of proof, that the referee should have found that there was a joint custodial environment, and that it was in the children’s best interests to change custody.

The trial court granted Father’s motion and awarded him primary physical custody. The Mother appealed.

Florida Modifying Custody

I have written about modification of child custody before. In Florida, during the initial child custody case, a family court must determine the best interest of a child based upon all of the factors listed in our child custody statute.

After determining the best interest of the child, and entering a child custody decree, Florida law grants continuing jurisdiction to the family court to modify the custody order but does not state the conditions necessary for modification.

Modification is based, in Florida, on the substantial change test. A party seeking a modification must prove a substantial and material change in circumstances, and that the best interests of the child will be promoted by such modification.

How Not To Teach Your Children

On appeal, the Mother argued the family court abused its discretion when it modified her custody. She argued under Michigan law, courts are not permitted to “modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.”

But at trial, there was evidence the Mother was having inappropriate conversations with the children about her sex life, wrestling with the children, negligently leaving her sex toy where one child and a friend found it, and was demonstrating she had an inability to control her anger and interact appropriately with the children.

The Michigan Court of Appeals affirmed the family judge. At the time of the trial, one child was only 11 years old and the other child was only 10 years old. There was a litany of evidence that the Mother was sharing her sex life details, making remarks about a date’s erectile dysfunction, raising her voice during a conversation with the children about sexuality, leaving a sex toy exposed, and allowing the children to be in the presence of a man she was dating who became intoxicated and acted highly inappropriately, and wrestling with the children after drinking.

The Michigan Court of Appeal opinion is here.

Family Court and Religious School

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

Custody and School

Starting Gate

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

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

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

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

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

The Mother appealed.

Florida Divorce and Religion

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

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

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

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

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

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

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

The Home Stretch

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

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

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

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

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

The Kentucky Court of Appeals opinion can be found here.

False Abuse Allegations in Child Custody Cases

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

False Abuse

False Abuse Claims

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

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

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

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

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

Florida False Abuse Claims

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

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

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

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

Self-Protection

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

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

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

The Psychiatric Times article is here.

The Rap on Joint Custody

Many are wondering what the rap is on joint custody after Kanye West requested joint legal and physical custody of his four children with Kim Kardashian. According to news reports, neither party is seeking spousal support.

Rap Custody

Famous

According to a legal response filed by the rapper’s attorney West, 43, requests joint legal and physical custody of their children. It should be no surprise that neither party is seeking spousal support.

The 43-year-old rapper’s sneaker and clothing business — now bolstered by Adidas AG and Gap Inc. — is valued between $3.2 billion and $4.7 billion by UBS Group AG, according to Bloomberg. A report published by the outlet on Wednesday, March 17, revealed that West’s total worth has skyrocketed to $6.6 billion. (Forbes previously declared West a billionaire in April 2020.)

Yeezy’s collaboration with Gap is set to hit stores this summer and “could be worth as much as $970 million” of the brand’s value, per Bloomberg. Last year, the Grammy winner signed a 10-year agreement to design and sell apparel under the Yeezy Gap label. West still holds total ownership and creative power within the company.

Along with the income from his Yeezy line, the “Gold Digger” artist has also accrued $122 million in cash and stock. He’s raked in an additional $110 million from his extensive catalog of music and has another $1.7 billion in other assets.

Forbes estimates that Kardashian West is now worth $1 billion, up from $780 million in October, thanks to two lucrative businesses—KKW Beauty and Skims—as well as cash from reality television and endorsement deals, and a number of smaller investments

Florida Shared Parental Responsibility

The question about an award of custody of children frequently comes up, especially now in Florida as the Legislature is considering a massive change to how timesharing is decided in family court.

Although Kanye is seeking “joint physical and legal custody, 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.

Go West

Amid the divorce, Kardashian has continued to live in the $60 million Hidden Hills mansion she shared with West, while the Yeezy designer Kanye has headed west, staying on his ranch in Wyoming.

I’ve written about the Kanye West Kardashian divorce problems before. Last year, after a series of tweets, Kanye claimed Kardashian and her mother, Kris Jenner, were trying to lock him up for medical reasons because of comments made during a rally in South Carolina.

West told the crowd during the Charleston event that he and his wife considered an abortion when she became pregnant with their first child. Kardashian emphasized in a past statement that “living with bipolar disorder does not diminish or invalidate his dreams and his creative ideas, no matter how big they feel to some.”

“I understand Kanye is a public figure and his actions at times can cause strong opinions and emotions. He is a brilliant but complicated person who on top of the pressure of being an artist and Black man, who experienced the painful loss of his mother, and has to deal with the pressure and isolation that is heightened by his bipolar disorder.”

West also asks for the court’s right to award spousal support for either person to be terminated, the filing says. In the document, West’s counsel lists irreconcilable differences as the couple’s reason for divorce, though a date of separation is not given.

West and Kardashian, 40, started dating in 2012 and tied the knot on May 24, 2014. Kardashian filed for divorce in February after nearly seven years of marriage.

The split between West and Kardashian came after a tumultuous period for the pair, who appeared to be on the brink of divorce last summer before reconnecting and spending private time together with their children.

In January, however, multiple sources confirmed that Kardashian had been working with a high-profile divorce attorney and planned to file for divorce. “They are just not on the same page when it comes to their future as a family,” one insider said at the time. “And Kim is okay with it.”

“Kim plans on staying at the Hidden Hills house with the kids. This is their home and Kim doesn’t want to move right now at least,” one insider previously told PEOPLE. “They both agree that the less stress the kids experience, the better. Kanye loves his kids. He wants them to be happy,” the source added. “He doesn’t want to fight with Kim about anything.”

The CNN article is here.

 

COVID-19 Vaccine and Child Custody Modification

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.

 

Canada, COVID, Custody, and Class

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.