Tag: Child Custody and Support

Equal Custody Presumption

Posted by Ron Kauffman on

A Kansas legislative committee heard passionate testimony this week from people both for and against a bill that would require courts to order shared custody and parenting of children in divorce cases. What is the status of equal custody?

Kansas Equal Parenting Bill

Kansas Senate Bill 257 would create a presumption in divorce cases that children of the couple would spend roughly equal time with each parent, unless the parties have agreed to another parenting plan in advance.

If the parties have not entered into a parenting plan, it shall be presumed that a court determination of legal custody, residency and parenting time providing for a child’s equal or approximately equal time with each parent is in the best interests of the child.

Under the bill, this presumption may be overcome only by clear and convincing evidence, a high burden to prove in court.

The equal parenting bill also allows courts to make a different determination if they make specific findings of fact stating why equal or approximately equal time with each parent is not in the best interests of the child.

Florida Timesharing

I’ve written about Florida’s attempt to create a presumption of equal timesharing before. People are sometimes surprised to find out that Florida does not have an equal custody law.

Instead, Florida has a parenting plan concept which includes parental responsibility and timesharing. In Florida, courts order shared parental responsibility for a child unless shared parental responsibility would be detrimental to the child.

The best interest of the child is the first consideration, and there are several factors judges evaluate to determine, under Florida law, what is in the child’s best interest.

Is a 50-50 Rule Good Policy?

Fifty-fifty timesharing between parents sounds like a great idea, and there are strong arguments for and against a presumption of equal timesharing.

On the one hand, an equal timesharing presumption promotes Florida’s existing policy of frequent contact after divorce, and puts the burden on the parent opposing equal timesharing, changing the dynamics of custody litigation.

However, requiring every family to have equal timesharing is like requiring every family to wear a size 4 shoe. Not every family fits. The equal timesharing presumption creates a uniform rule where the flexibility of ‘the best interest of the child’ is needed.

We’re Not in Kansas Anymore

Under current Kansas law, custody cases are governed by what judges determine to be in the best interest of the child, rather than equal custody. Changing that law is a heated debate.

Not surprisingly, the hearing drew a packed audience, who told about the difficulty they have had maintaining relationships with their children when they were allowed only limited visitation.

The Lawrence Journal World article is here.

 

British Grandparent Rights

Posted by Ron Kauffman on

A British grandmother who wanted to assert some grandparent rights for her grandchild, fought local authorities after a recommendation that the baby be put up for adoption. She won, and now the child is in her custody.

In Britain, the parents of the child were unable to look after the baby, and the paternal grandmother put herself forward to be the special guardian, a role similar to foster care.

The grandparent rights case, heard in Britain last month, raises questions about the challenges faced by families trying hold on to children as special guardians for their relatives’ children – mostly grandparents.

Florida Grandparent Visitation

I’ve written about grandparent rights to visitation several times. The U.S. Supreme Court, in Troxel v. Granville, held that the Due Process Clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

So, as long as a parent is adequately caring for his or her child, there will normally be no reason for the state to inject itself into the private realm of the family. The basic presumption in Troxel is that fit parents act in the best interests of their children.

However, the Troxel court did not hold that the Due Process Clause requires a showing of harm or potential harm to the child as a condition to granting rights of visitation. That is a Florida law.

Instead, the U.S. Supreme Court left those decisions for the states to decide on a case-by-case basis.

It surprises many Floridians – because of the large percentage of grandparents here – but grandparent don’t have visitation rights here.

Grandparent rights to custody and time-sharing do not really exist in Florida without showing harm to the child; otherwise, it is deemed to violate parents’ privacy.

British Grandparent Battle

The grandparent rights case involved a professional who works with children, initially received what the judge described as “very positive and full assessments” about her suitability as a caregiver.

However, more than five months after care proceedings began it was followed by a second negative report who questioned her commitment. At this point, the social work team recommended that the baby instead be put up for adoption.

When the case came to court, the judge ordered that the grandmother should become the baby’s special guardian after all.

Describing the hearing, the judge said the grandmother had “expressed profound dissatisfaction about the way in which she had been assessed and treated”.

The protracted battle has meant the baby only recently joined the grandmother after a long stay in foster care.

The judge paid tribute to the grandmother as “an intelligent and courteous woman” who had “put herself out considerably to offer her grandchild the opportunity of being cared for within the natural family”.

The Buzzfeed article on grandparent rights is here.

 

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.

 

Does Cohabitation Increase the Risk of Divorce?

Posted by admin on

On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Sunday, July 15, 2012.

Child custody is not limited to divorce cases. Cohabitation, couples living together before marriage, has increased by more than 1,500% in the United States over the last 50 years. The rise of cohabitation, presumed to better your chances of staying married, may actually increase the risk of divorce.

In a nationwide survey conducted in 2001 by the National Marriage Project, then at Rutgers and now at the University of Virginia, nearly half of 20-somethings agreed with the statement, “You would only marry someone if he or she agreed to live together with you first, so that you could find out whether you really get along.” About two-thirds said they believed that moving in together before marriage was a good way to avoid divorce.

However, a new study shows that couples who cohabit before marriage – before an engagement or other clear commitment – tend to be less satisfied with their marriages, and are more likely to divorce than couples who do not. The negative outcomes in these relationships are called the cohabitation effect.

The article can be found in the New York Times.

Whether you are ending a long term relationship – or marriage – complicated issues arise. This is especially so if children are involved, and one parent wants to move to another state. There is an alphabet soup of state and federal statutes – UCCJEA, FFCCSOA, and UIFSA – which can significantly impact where you can file or modify interstate child custody and child support orders.

Whether you are divorcing, or ending a long-term relationship, it is important you get expert advice on federal and state laws impacting these complicated interstate issues.