Tag: child custody and religion

Recognizing International Divorce Decrees

Turkey’s Court of Cassation is not recognizing the international divorce decrees of other countries if they are against public policy. Turkey’s high court recently threw out a lower court verdict that a man’s divorce from his wife in Saudi Arabia is valid in Turkey. The “triple talaq”, or “unilateral” divorce contradicted with “Turkish public order as it ignored the woman’s will.”

Coffee Grounds for Divorce

A Marmara Marriage

The Supreme Court of Appeals of Turkey, which was founded in 1868, is the last instance for reviewing verdicts given by courts of criminal and civil justice. The Supreme Court recently announced that it is rejecting a verdict related to a 2016 divorce case approved by a Family Court in Jeddah, Saudi Arabia. The sides were a Turkish citizen of Afghan origin and his wife, an Afghan citizen.

When the man, unidentified in court documents made public, filed a lawsuit for recognition of the divorce, a local court approved it. However, the wife took the case to a higher court, seeking to annul the divorce. The higher court of appeals rejected her appeal but the Court of Cassation, the ultimate authority in such cases, sided with the woman.

The court reasoned that although divorce cases settled abroad can be recognized in Turkey, the court should examine whether the divorce verdicts comply with “basic values of Turkish law, Turkish morals, basic rights and freedoms and shared values of developed communities and level of civilization.”

The top court said women and men have equal rights under the Turkish constitution. “The recognized verdict of (the Saudi) court is based on a document on talaq (unilateral divorce) and the wife is deemed divorced after a period of three months when she is not reunited with her husband. As a matter of fact, there is no divorce verdict in this case.

Such a verdict is based on a one-sided declaration of the husband and his claim of failure to reunion within three months ignores the woman’s free will and hence, openly contradicts with Turkish public order,” the court said.

Florida Religion and Divorce

I’ve written about the triple talaq and other aspects of religious divorces before. How does religion impact Florida divorce? First, there can be issues relating to parental responsibility 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 incubated over time in various cases.

For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, the best interest of the child shall be the primary consideration.

In Florida, a determination of the best interests of the child is made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family.

There is also international divorce jurisdiction angle when a divorce is based on religion. Florida, under the UCCJEA provides a general legal framework for recognition and enforcement of foreign custody and visitation decrees originating from foreign jurisdictions.

A foreign country is treated as a “state” for purposes of applying the UCCJEA. The UCCJEA, like the Hague Convention, can also be used to seek the return of a child from Florida to a foreign country.

But there are limits, as Turkey’s high court recently found. For example, when the foreign law itself fails to recognize a fundamental public policy tenet, such as considering the best interests of the child, the courts of Florida may decline to recognize the judgment. However, whether the foreign court has properly applied its law is a question for the foreign jurisdiction.

Triple Talaq

Saudi Arabia adheres to an interpretation of Islamic law though there is no written law. Triple Talaq allows Muslim men to leave their wives instantaneously by saying “talaq,” meaning divorce three times. In Saudi Arabia Men are granted the right to talaq and, until recently, the courts were not required to immediately inform women that their husbands unilaterally divorced them.

Unilateral divorce is exclusive to men while women are entitled to khul or khal, a type of divorce where the husband should agree to pay back the dowry of the wife seeking divorce.

Men also remain the woman’s “guardian” throughout divorce proceedings in the country where most things women seek to do require the company of a male guardian, from travel to marriage.

Turkey’s Daily Sabah 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.

 

Losing Custody for Lack of Medical Care

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

Custody Medical Care

Breaking Away

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

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

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

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

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

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

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

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

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

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

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

Florida Child Custody

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

In divorce and paternity cases generally, shared parental responsibility is a relationship ordered by a court in which both parents retain their full parental rights and responsibilities. Under shared parental responsibility, parents are required to confer with each other and jointly make major decisions affecting the welfare of their child.

In Florida, shared parental responsibility is the preferred relationship between parents when a marriage or a relationship ends. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

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

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

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

Cutters and Custody

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

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

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

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

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

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

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

The Omaha World Herald article is here.

 

COVID-19 Vaccine and Child Custody Modification

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.

 

When Divorce Court Rules on Your Religion

When a divorce court rules on your religion of choice, Constitutional issues are reborn. This happens frequently when couples agree to raise their children in a certain religion. In a recent appellate case, after the parents chose Christianity as their religion of choice, an Arizona family judge had to decide whether Mormons were Christian.

Divorce Religion

A Monumental Judgment

A Mother and Father married in November 1999 and had two children. In December 2017, the Mother petitioned for divorce and filed with the divorce decree a parenting plan signed by both parents. The Parenting Plan stated:

Each parent may take the minor children to a church or place of worship of his or her choice during the time that the minor children is/are in his or her care. Both parents agree that the minor children may be instructed in the Christian faith.

About a year after the divorce, the Father joined The Church of Jesus Christ of Latter-day Saints, and the children occasionally joined him at meetings. After the Mother learned the children were accompanying their Father to a Mormon Church, she moved to enforce the Parenting Plan, claiming the Mormon Church is not Christian under the Parenting Plan.

The family judge held two hearings on the enforcement petition. During the second hearing, the Mother called a youth ministry leader from her church to testify that Father’s Church is not Christian.

After taking the matter under advisement, the judge decided that the Parenting Plan directs that “the Children shall only be instructed in the Christian faith” and that Father’s Church was not “Christian” within the meaning of the Parenting Plan.

The family court judge decided the Father could not take the children to the Father’s Church’s services, that he had violated the Parenting Plan, and awarded the Mother attorney’s fees.

The Father appealed.

Florida Divorce and Religion

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

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

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.

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 trial 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.

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

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.

Road to a Constitutional Victory

On appeal, the first thing the appellate court found was that the trial judge’s ruling was based on the wrong interpretation of the Parenting Plan. The religious-education section of the Parenting Plan unambiguously stated that:

“[e]ach parent may take the minor children to a church or place of worship of his or her choice during the time that the minor children is/are in his or her care.”

This language, it was held, permitted the Father to take the children to any “place of worship,” be it “Christian” or “non-Christian.” Nothing in the clause explicitly limits or narrows this authority. The family judge was found to have erred to the extent that it found the Parenting Plan did not permit Father to take the children to a church or place of worship of his choice.

But, the appellate court also held that even if the clause expressly constrained the Father’s right the court would have vacated the holding because the court violated the First Amendment of the Constitution when it ruled that a Mormon Church is not Christian.

The appellate court ruled that the divorce judge had to abstain from handling Mother’s claim once it became clear the dispute concerned an ecclesiastical matter.

The Free Exercise and Establishment Clauses of the First Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment, “preclude civil courts from inquiring into ecclesiastical matters.”

Here, the family court dove right into an ecclesiastical matter by addressing whether the Mormon Church is part of the Christian faith. That very question has long been a matter of theological debate in the United States. A secular court must avoid ruling on such issues to prevent the appearance that government favors one religious view over another.

Although the judge was interpreting the Parenting Plan, the court did not resolve it through neutral principles of law but instead engaged in the exact type of inquiry into church doctrine or belief that the First Amendment prohibits.

For example, at an evidentiary hearing, the trial judge allowed in testimony from a minister to claim that Mormon Church was not part of the Christian faith, and admitted a chart comparing the tenets of the Mormon Church with Christian beliefs. The court’s order specifically found “that Mormonism does not fall within the confines of the Christian faith.”

In reversing, the appellate court ruled that courts are not the appropriate forum to assess whether someone who self-identifies as “Christian” qualifies to use that term. If the trial court’s order could stand, the “harm of such a governmental intrusion into religious affairs would be irreparable.”

A parenting plan’s religious-education provision can be enforced without violating First Amendment principles if the dispute does not require a court to wade into matters of religious debate or dogma.

The Arizona opinion is here.

Religious Education, Child Custody & Stephens’ Squibs

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

Custody Educaton

Oh Canada

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

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

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

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

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

Florida Education and Child Custody

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

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

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

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

A CN Tower-ing Decision

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

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

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

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

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

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

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

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

The Ontario family court decision is available here.

Speaking on Stephens’ Squibs

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

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

Learn more here.

 

Your Nanny Could Be Entitled to Custody and Visitation

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

de facto parent 2

Half Baked Parents

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

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

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

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

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

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

Florida De Facto Parents

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

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

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

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

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

A Chunky Monkey Decision

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

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

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

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

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

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

Religion LGBTQ+ and Custody Rights Erupt

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

Parent Custody

Rumblings

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

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

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

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

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

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

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

Florida Religion and Family Law

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

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

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

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

Eruption

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

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

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

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

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

The injunction order is here.

 

You Can’t Post That: Free Speech and Child Custody

Free Speech and child custody becomes an issue every time someone posts photos of children on social media. Glowing grandparents should be especially careful. That’s because in the European Union, balancing freedom of speech and privacy has become much trickier after a Dutch court ordered a grandma to take down photos of her grandchildren.

Free Speech and Custody

European Union Speech Laws

In the Netherlands, a woman was asked by her daughter to take down pictures of her children from Facebook and Pinterest several times, but she did not respond. The daughter took this little family dispute to court, and asked a judge to stop her.

A judge in the province of Gelderland, in the eastern part of the country, decided that the grandmother was prohibited from posting photos on social media of her three grandchildren without the permission of her daughter, the children’s mother.

The District Court judge said grandma violated Europe’s sweeping internet privacy law, called the General Data Protection Regulation, or G.D.P.R. In the Netherlands, the G.D.P.R. dictates that posting pictures of minors under the age of 16 requires permission from their legal guardians.

The women, whose names were not provided in the court documents, fell out about a year ago and hadn’t been in regular contact, according to filings in the court case. After the children’s mother asked for the pictures to be deleted without the desired effect, she took the case to court.

Publishing the children’s pictures on social media would, according to the mother, seriously violate their privacy.

The Gelderland judge agreed that the grandmother did not have permission to post the pictures under General Data Protection Regulation (GDPR) legislation.

Those rules do not normally apply to the storage of personal data within personal circles such as family. However, in this case, the grandmother had made the photos public without the consent of the mother — who has legal authority over which data of her underage children may be stored and shared.’

Florida Free Speech and Child Custody

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children. Florida courts have to balance a parent’s right of free expression against the state’s parens patriae interest in assuring the well-being of minor children. Currently, grandparents have little to no rights to visitation in Florida.

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

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

The judge was concerned about the Mother’s comments, after the Mother “whisked” the child away from the time-sharing supervisor in an earlier incident and had a “private” conversation with her in a public bathroom. She was also bipolar and convicted of two crimes.

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

Not unlike the new EU law, Florida law tries to balance the burden placed on the right of free expression essential to the furtherance of the state’s interests in promoting the best interests of children. In other words, in that balancing act, the best interests of children can be a compelling state interest justifying a restraint of a parent’s right of free speech.

As the Windmill Turns

The Dutch court also held that by posting of photographs on social media, the grandmother made them available to a wider audience, the court’s ruling, published earlier this month, explained.

“On Facebook, it cannot be ruled out that placed photos could be distributed and that they may come into the hands of third parties”.

The judge ordered the grandmother must remove the pictures of her grandchildren from Facebook and Pinterest within ten days, the judge ruled. If she does not, she must pay a penalty of €50 ($55) per day that the photos are online, with a maximum penalty of €1,000 ($1,100).

The daughter had asked to impose a penalty of €250 ($275) per day if the photos remained. According to the mother’s statement, publishing the children’s pictures on social media can seriously violate their privacy.

GDPR is the European Union’s data privacy law, which came into effect in 2018. It gives people more control over their personal data and forces companies to make sure the way they collect, process and store data is safe.

The EU’s intention was to achieve a fundamental change in the way companies use data — with its central idea being that people are entitled “privacy by default.” Although EU countries seem to have taken their data protection obligations under the GDPR seriously, their efforts to balance data privacy and freedom of expression have been more uneven.

Many are concerned that the GDPR’s safeguards to protect the right to data privacy may compromise freedom of expression. As the practice of enforcing the GDPR by family members continues to unfolds, many are watching if the EU can balance privacy and freedom of expression.

The CNN article is here.

 

Child Custody and Speech Restrictions

Divorce can be stressful. Parents going through a high conflict child custody case often say and post things they come to regret. Children are the victims. In order to protect children, courts sometimes order speech restrictions in child custody cases, limiting what a parent can say, and removing posts from social media. That’s when the first amendment comes into play.

Custody Speech Restrictions

Boston Legal

Ronnie Shak and Masha M. Shak were married for about 15 months and had one child together. The mother filed for divorce when the child was one year old and then filed an emergency motion to remove the father from the marital home, citing his aggressive physical behavior, temper, threats, and substance abuse.

A Family Court judge ordered the father to leave the marital home, granted the mother sole custody of the child, and after the mother requested it, prohibited the father from posting disparaging remarks about her and the case on social media:

Neither party shall disparage the other — nor permit any third party to do so — especially when within hearing range of the child. Neither party shall post any comments, solicitations, references or other information regarding this litigation on social media.

The mother then moved for civil contempt alleging that the father violated the first orders by publishing numerous social media posts and commentary disparaging her and detailing the specifics of the divorce on social media. The Father argued this was an unfair prior restraint on his speech.

A second family judge, then modified the order stating:

Until the parties have no common children under the age of [fourteen] years old, neither party shall post on any social media or other Internet medium any disparagement of the other party when such disparagement consists of comments about the party’s morality, parenting of or ability to parent any minor children. Such disparagement specifically includes but is not limited to the following expressions: ‘cunt’, ‘bitch’, ‘whore’, ‘motherfucker’, and other pejoratives involving any gender. The Court acknowledges the impossibility of listing herein all of the opprobrious vitriol and their permutations within the human lexicon.

The Massachusetts Supreme Judicial Court granted direct appellate review.

Florida Child Custody and Speech Restrictions

I’ve written about divorce and speech issues before. How you speak to the other parent and the child, and what you post online, can have a big impact on your child custody case.

In fact, Florida Statutes expressly require a family court judge to consider how each parent protects their child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.

Family courts have a lot of power to protect children in custody cases. Florida courts have to balance a parent’s right of free expression against the state’s interest in assuring the well-being of minor children.

In other words, the court performs a balancing act using the best interests of children, which can be a compelling state interest justifying a restraint of a parent’s right of free speech, as the measure.

Back in the Back Bay

The High Court held the second judge’s additional language still violated the First Amendment. The State has a compelling interest in protecting children from being exposed to disparagement between their parents.

However, as important as it is to protect a child from the emotional and psychological harm that might follow from one parent’s use of vulgar or disparaging words about the other, merely reciting that interest is not enough to satisfy the heavy burden of justifying a prior restraint.

Here, there was never a showing made linking communications by either parent to any grave, imminent harm to the child. As a toddler, the child was too young to be able to either read or to access social media. The concern about potential harm that could occur if the child were to discover the speech in the future is speculative and cannot justify a prior restraint.

The court did list remedies to deal with disparaging speech. For example, a couple can enter non-disparagement agreements voluntarily, a parent may have the option of seeking a harassment prevention order, or sue for intentional infliction of emotional distress or defamation.

Judges, who must determine the best interests of the child, can also make clear to the parties that their behavior, including any disparaging language, will be factored into any subsequent custody determinations.

The Reason article is here.