Tag: child custody and religion

Rape and Child Custody

Posted by Ron Kauffman on

As the Hollywood sex abuse scandal widens, another issue comes to mind: can someone convicted of criminal sexual misconduct get child custody of the offspring he fathers? It may seem like an unbelievable question, but a Michigan mother just found out it is very real.

In Sandusky, Michigan, a district court judge just stayed his order which granted an alleged rapist joint custody and parenting time as father of an 8-year-old boy after the judge learned details of the case.

According to USA Today, a standardized form was used in the original case the lawyer for the boy’s mother said. The boy’s mother had requested welfare benefits. To qualify for payments, she had to file a paternity complaint.

This young woman … completed and signed a paternity questionnaire in which she disclosed the alleged father’s name and address. She further signed an agreement to cooperate with pursuing paternity and signed a statement authorizing the disclosure of her address.

Federal law requires state departments of health and human services to establish paternity and pursue a child-support order from a court, Bob Wheaton, the Michigan department’s spokesman, wrote in email.

The department would need to be notified by the custodial parent of any reason to determine good cause not to pursue a child support order.

Rape Survivor Child Custody Act

This is actually a national problem.

Each year, there are approximately 32,000 pregnancies resulting from rape, according to a 1996 study by the American Journal of Obstetrics and Gynecology.

This used to happen so much, I’ve actually written about this nationwide phenomenon of a rapist getting custody before.

Originally, in Pennsylvania, State Senator Randy Vulakovich and Representative Joe Hackett introduced the Rape Survivor Child Custody and Support Act in the Senate and House, respectively.

Congress also got involved. President Obama signed the Rape Survivor Child Custody Act into law as part of the bipartisan Justice for Victims of Trafficking Act.

The Rape Survivor Child Custody Act boosts funding for states that allow women to petition for the termination of parental rights based on clear and convincing evidence that a child was conceived through rape.

Back in Michigan

The standard form that the boy’s mother was asked to fill out doesn’t have anywhere to state her concerns. The county is now reviewing its handling of paternity complaints.

The judge, Gregory Ross, scheduled a hearing after halting his September order. That order also had required the father to pay $346 a month in child support and maintain health-care coverage.

Christopher Mirasolo, now 27, of Brown City, Mich., pleaded guilty to attempted third-degree criminal sexual conduct in the Sept. 6, 2008, assault of the woman, who was 12 years old when he was 19.

Sanilac County released the alleged rapist after 6½ months in jail. He also later pleaded no contest to third- and fourth-degree criminal sexual conduct in a March 29, 2010, incident involving a 15-year-old girl, serving four years in state prison for that crime, and is a registered sex offender.

The USA Today article is here.

 

Vaccinations and Custody

Posted by Ron Kauffman on

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

Michigan’s Vaccination Case

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

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

Custody and Vaccinations

Generally, shared parental responsibility is a relationship ordered by a court in which both parents retain their full parental rights and responsibilities.

Under shared parental responsibility, parents are required to confer with each other and jointly make major decisions affecting the welfare of their child.

In Florida, shared parental responsibility is the preferred relationship between parents when a marriage or a relationship ends.

In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

Issues relating to a child’s physical health and medical treatment, including the decision to vaccinate, are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court.

At the trial, the test applied is the best interests of the child. Determining the best interests of a child is no longer entirely subjective

Instead, the decision is based on an evaluation of certain factors affecting the welfare and interests of the child and the circumstances of the child’s family.

Florida Vaccinations

I’ve written about the decision to vaccinate and custody in Florida before.

In Florida, a court can carve out an exception to shared parental responsibility, giving one parent “ultimate authority” to make decisions, such as the responsibility for deciding on vaccinations.

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

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

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

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

Vaccination and Jail

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

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

Should You Marry Someone From Another State?

Posted by Ron Kauffman on

When Wisconsinites choose a spouse, there’s just something about those Minnesotans that they find irresistible. Time magazine looked at over 100 million interstate marriages to make the analysis. The analysis also raises the issue of interstate custody.

Do We Marry Local?

Time magazine recently did an analysis of which states were most compatible when it comes to marriages. To figure this out, Time examined data on 116 million “interstate marriages” in which the partners were born in different states.

For people from each state, they looked at the most common home states for their spouses compared to the national average.

While people are generally most likely to marry someone from the same home state as themselves — eat local, and “marry local,” you might say — those who choose a spouse born in a different state don’t tend to drift very far.

To be clear, while Texans are much more likely than most other people to marry a Louisianan, there are still more total marriages between Texans and Californians, since California is such a large state. Whether you’re from California or your spouse is from Texas, if you have a child, this could have an interstate custody issue.

Your Interstate Child

I’ve written on the issue of interstate custody before, and was recently invited to speak at a state-wide presentation. There are two major interstate, uniform acts that have been adopted by almost every state in the U.S. The first, UIFSA, deals with interstate children support. The Second, UCCJEA, deals with custody.

UIFSA is a uniform act drafted by the Uniform Law Commission, and forcibly adopted by all U.S. states by federal law. Historically, multiple orders, issued by different states, created confusion; courts were unsure which orders were to be enforced, and it was easy to reduce, delay and evade enforcement by moving across state lines.

The purpose of UIFSA is to improve and extend the enforcement of duties of support so that once a foreign support order is registered in Florida, it has the same effect as a Florida order.

The UCCJEA, like the UIFSA, is another uniform act drafted by the ULC, and adopted by all U.S. states except Massachusetts. Different states have different approaches to issues related to custody, and inconsistent rulings about custody could create major problems.

The UCCJEA and the UIFSA share common features and concepts, and in places, the two acts have nearly identical provisions. However, they deal with different family law issues (custody and support) which can strongly impact how the two Acts are implemented.

The general purposes of the UCCJEA are: to avoid jurisdictional competition and conflict with other courts in child custody matters; promote cooperation with other courts; insure that a custody decree is rendered in the state which enjoys the superior position to decide what is in the best interest of the child; deter controversies and avoid re-litigation of custody issues; facilitate enforcement of custody decrees; and promote uniformity of the laws governing interstate custody issues.

Idahoans Love Utahans

According to Time, some of these bonds are stronger than others. While Michiganders are about equally likely to pair off with someone from Wisconsin, Ohio or Indiana, people from Utah and Idaho share a deep, mutual connection.

If you were born in Utah, for example, you are 15 times more likely to marry an Idahoan than someone from elsewhere — a bond that may be strengthened by the fact that they have the largest concentrations of Mormons, according to a 2013 Gallup poll.

On the other hand, most connections between states are not mutual. A person from South Dakota has the most disproportionate chance of marrying someone from North Dakota.

However, the North Dakotans have a slightly higher penchant for marrying Minnesotans, as do those from Wisconsin.

Likewise, Mississippi is the soul state for those born in Tennessee, Louisiana and Alabama.

The Time magazine article is available here.

 

Religious Upbringing and Divorce

Posted by Ron Kauffman on

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

The New York Case

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

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

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

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

Florida Religious Upbringing

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

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

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

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

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

New York Law Changes

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

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

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

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

The Washington Post article is here.

 

Can Low Intelligence Cost You Custody?

Posted by Ron Kauffman on

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

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

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

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

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

Florida Child Custody

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

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

I’ve written about child custody cases before. Generally, when parents cannot agree, the dispute is resolved in court. At the trial, the test applied is the best interests of the child.

Determining the best interests of a child is no longer entirely subjective. Instead, the decision is based on an evaluation of 20 statutory factors, and one equitable catch-all factor, affecting the welfare and interests of the child and the circumstances of the child’s family.

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

The Oregon Case

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

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

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

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

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

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

The Oregon Live article is here.

 

Child Custody, Sex, and Religion

Posted by Ron Kauffman on

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

Case History

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

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

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

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

Florida Child Custody

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

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

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

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

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

Epilogue

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

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

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