Tag: child custody and religion

Interfaith Marriage and Divorce

Increasingly, couples are in interfaith marriages, meaning each person is from a different religion. Along with societal disapproval, are there any other possible problems a couple in an interfaith marriage face that could lead to divorce? A recent Indian case sheds some light.

Interfaith Marriage

Gujarat

India is a country of many religions. In the western state of Gujarat, roughly 88.6 percent of the population is Hindu and about 9.7 percent are Muslim. Recently, a division bench of the Gujarat High Court granted relief to an interfaith couple – but then went on to caution the wife’s parents not to “misbehave” due to their opposition to the interfaith marriage.

The order prohibiting in-law misbehavior concerns the marriage of a 26-year-old Muslim man to a 20-year-old Hindu woman under the Special Marriage Act in Ahmedabad in May 2021. The Special Marriage Act is a law that allows solemnization of marriages irrespective of the religion of the couple.

The Act also requires parties to give a 30-day public notice of their intention to marry. The public notice is displayed at the office of the marriage officer, inviting potential objections to the marriage.

However, the woman’s parents were opposed to the marriage and, the couple decided that the woman will stay at her parental home until their approval.

According to the court petition, the woman was subjected to physical and mental cruelty by her father over the marriage. Then, in December 2021, the woman left her home willingly and started residing at her matrimonial house.

The court also directed the woman’s parents to share the books and clothes of the woman that are in the parents’ possession as the woman is “desirous of continuing her studies,” while disposing the petition.

Interfaith Marriages

I have written about religion and divorce before. Marrying within the faith is still common in the United States, with nearly seven-in-ten married people (69%) saying that their spouse shares their religion, according to a recent Pew Research Center survey.

A comparison of recent and older marriages shows that having a spouse of the same religion may be less important to many Americans today than it was decades ago.

The Pew Religious Landscape Study found that almost four-in-ten Americans (39%) who have married since 2010 have a spouse who is in a different religious group. By contrast, only 19% of those who wed before 1960 report being in a religious intermarriage.

Some research suggested that marriages between members of the same religious group may be more durable than intermarriages. If this is true, the rise in religious intermarriage over time may not be as pronounced as it appears, since the Religious Landscape Study measures only marriages intact today.

Other surveys looking at divorce rates did not find an overall lower – higher divorce rate among interfaith couples. But did find that certain combinations made it much more likely that the marriage would end in divorce.

The most likely interfaith marriages to end in divorce were Evangelicals married to someone of no faith. This may simply be the case that the further apart the religions, the more likely divorce may be.

Interfaith India

The woman’s father, however, then filed a “false complaint” with the Danilimda police station alleging that his daughter left the house with cash and ornaments.

In response, the police visited the house of the husband and “started harassing the family members of the petitioner (husband) in order to get custody” of his wife. To “avoid unnecessary harassment by the police”, the couple left for Ajmer in Rajasthan.

The police soon brought the couple back to Danilimda police station and “illegally and arbitrarily” took the woman in custody. Following production before a magistrate court, was housed at Nari Vikas Gruh in Paldi.

The magistrate court subsequently handed over custody of the woman to her parents. Soon, represented by advocate Rafik Lokhandwala, the petitioner-husband moved the Gujarat HC with a habeas corpus petition.

The Indian Express article 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.

Court Orders Covid Vaccination of Children

In a child custody case in Kentucky, a family court orders the COVID vaccination of two small children. Last week a Kentucky appellate court decided the important issue of whether the family court judge was legally entitled to require the COVID vaccinations for the children over one parent’s objection.

Kentyck covid

The COVID Vaccine Derby

Recently Canada resolved the issue over whether an unvaccinated parent can actually lose their child custody rights for refusing to vaccinate their child. This week’s issue is slightly different, can the court require a vaccination over another parent’s strongly held religious views and objection.

In the Kentucky case, the parties had divorced in 2018. They shared joint custody and equal timesharing of their two children, aged eight and six. Throughout their marriage, and divorce, the parents always declined the required immunizations for their children on religious grounds.

In fact, there was proof that they had signed affidavits in New York and Georgia declining vaccinations for their children on religious grounds and when they divorced, they signed Kentucky’s form for declining immunizations on religious grounds.

However, two years later, the father had a change of heart. On June 30, 2020, he filed a motion for an order to allow him to vaccinate the children. The Mother objected, and a hearing was held in Family Court to resolve the question.

The Father testified that he originally agreed not to vaccinate the children because he was leaving for deployment with the military and was unable to meet with the pediatrician. He thought there was an understanding the parties would just delay the vaccines.

But, after he finished his military service, he began discussions with Mother regarding vaccinations for the children. Father stated that when he signed the vaccination declination affidavit he had doubts about the development of certain vaccines by use of aborted fetal cells.

Now he believes the use of aborted fetal cells is so far removed from the process of developing vaccines that his concerns no longer exist. He believes it is appropriate to vaccinate the children. He wants to follow the advice of the children’s pediatrician to vaccinate.

The Mother vehemently objected saying that doing so violates her firmly held religious convictions opposing the use of aborted fetal cells in the manufacture and design of the vaccines. Rather, she prefers using medication and antibiotics to treat her children. She argues there was an understanding between her and Father that the children should not be vaccinated and produced multiple documents the parties signed to that effect.

Florida Child Vaccinations

I’ve written about the injection of vaccines into Florida child custody cases 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 and other states.

Kentucky Fried Covid

The family court trial judge ruled it was in the children’s best interest to be vaccinated. The judge reasoned that, on balance, the children’s health and welfare outweighed the religious beliefs of one parent.

The court ordered that the parties consult with the pediatrician to craft a “catch-up” schedule bringing the children current on vaccinations and other immunizations, or, if the parties were able, to agree to alternative vaccines that could potentially be utilized that do not use aborted fetal cells in their development and design.

In affirming the trial judge’s ruling on appeal, the appellate court noted the overriding principle that the best interest of each child must be served by the family court’s decision.

The mother’s argument did not articulate any detriment or risk of harm to her children by not vaccinating them. The father simply argued her religious views should not take precedence over his.

The court ruled that when there is an impasse between a Mother and Father a family court properly can ‘break the tie’. Equal decision-making power is not required for joint custody, and parties or trial courts are free to vest greater authority in one parent even under a joint custody arrangement.

The family court heard from both the Mother and Father, and found that it would be in the children’s best interest to be vaccinated in accordance with their pediatrician’s recommendations and Centers for Disease Control and Prevention (CDC) guidelines.

The Kentucky appellate opinion is here.

Custody Rights and the Unvaccinated Parent

Whether an unvaccinated parent can lose their child custody rights is a painful topic these days given the talk of vaccine mandates around the world. The United States is not alone in countries where people have pointed positions on vaccine mandates. A court in Canada was recently left to make a painful decision about custody rights and an unvaccinated parent.

Custody Vaccination

A Shot of the Constitution

In the United States, making the COVID vaccine mandatory has become more of a constitutional issue than a public health one. The issue has become especially sharp in child custody cases. Parents have a fundamental right to raise their children, but there can be exceptions. Courts have had a difficult time threading the needle when parents disagree about vaccinations.

These issues are not just in the United States either. The Ontario Court of Justice recently had to decide whether a father’s decision to remain unvaccinated against COVID should deprive him of his parenting time.

In L.S. v. M.A.F., the mother sought an order that the father’s parenting time be supervised. Why? The mother claimed that due to the father’s significant anger management issues, she feared for the child’s safety if left alone with him.

The mother also said she trusted the paternal grandmother and the father’s sister to supervise the father’s parenting time. The father opposed and sought liberal and unsupervised parenting time with his child.

During cross examination, the father revealed that he was not vaccinated against COVID-19. He also had no intention to get vaccinated, claiming that it was contrary to his Rastafarian beliefs, for which the court notes he did not provide evidence.

He was nevertheless willing to take safety precautions during his parenting times, for example, wearing a mask. He also attested that the paternal grandmother is fully vaccinated and that he is comfortable with taking the child to her home.

Citing Justice Robert Spence in his decision in A.G. v. M.A., 2021 ONCJ 531, the court said that there were competing interests at stake: on the one hand, parenting time increased the child’s risk of infection for COVID-19, and on the other, the child is entitled to have a meaningful relationship with her father.

Florida Vaccination

I’ve written about the injection of vaccines into Florida child custody cases 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 Chicago case, however, involves a parent’s refusal to vaccinate herself.

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

Getting to the Point

The court agreed with the mother that it is in the best interest of the child to have a meaningful relationship with her father.

But, after evaluating the evidence, the court concluded that it was necessary for the father’s parental time to be supervised by the paternal grandmother or his sister, both of whom are vaccinated and willing to supervise the father’s parenting time.

The father had very little parenting experience and knowledge of the child’s needs, which can be compensated by the experience of the paternal grandmother or his sister, said the court. The court also considered the father’s little control over his temper and becomes verbally abusive and threatening when angered, and the presence of a third party can ensure that the child is removed from any situation should the father lose control of his temper.

To reduce the risk of the child contracting COVID-19, the court-imposed restrictions upon the father’s parenting time, including that it shall be exercised either outdoors or in the paternal grandmother’s home and that both father and child shall always wear masks.

The court also ruled that should the father become fully vaccinated, the restrictions shall no longer apply, but if these restrictions are violated, the mother may suspend his in-person parenting time.

Canada’s Law Times article is here.

 

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.