Tag: Child custody & free speech

Joint Physical Custody

Posted by Ron Kauffman on

Former NFL wide receiver, Hank Baskett, answered his former Playboy model wife’s divorce petition last week, and is asking for joint physical custody of their two children. What is joint physical custody, and is it something you should ask for in Florida?

Penalty Flags

Baskett is a former wide receiver who played in the NFL for the Vikings, the Eagles and the Colts. While at the University of New Mexico, he was a leading wide receiver and earned all-academic honors.

Baskett married Playboy model Kendra Wilkinson in 2009. Wilkinson and Baskett were co-stars on Kendra, a reality TV series following Wilkinson’s life. They have co-starred on another show, Kendra on Top, since June 2012.

His wife announced her intention to divorce on Instagram. A few years ago, she received bad press when she criticized people who had a problem with a photo she posted to her Instagram account of her daughter, stating:

“Wow by my last post I just exposed all you sick f**ks… [m]an, this world is more f**ked up than I thought, I’ll go ahead and go back to my vacation while we run around naked n free.”

According to People, in the former NFL player’s filing submitted Friday, Baskett cited irreconcilable differences as the reason for the divorce after 9 years of marriage according to court documents obtained by The Blast.

Mirroring his wife’s filing, Baskett listed their date of separation as Jan. 1, 2018, and requested joint legal and physical custody of their two children.

Many people are surprised to learn when they file for divorce or custody in Florida that joint legal and physical custody is not available in Florida.

Florida Shared Parental Responsibility

I’ve written about child custody issues before. In 1979, the first joint custody statute was enacted in California. The joint legal custody law promoted more paternal involvement after divorce.

In 2008, Florida modified its custody laws to get rid of outdated and negative terminology about divorcing parents and their children to reduce animosity.

The law did that by deleting the definitions of the terms “custodial parent” or “primary residential parent” and “noncustodial parent” and creating a definition for the terms “shared parental responsibility, “parenting plan”, and “time-sharing schedule.

Shared parental responsibility, is similar to joint physical and legal custody, and is a relationship 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.

Florida’s public policy comes from the literature proving the importance of a father’s contributions to a child’s development and a child’s attachment to a father, gender roles within families are shifting, and the documented loss and alienation experienced by noncustodial parents and children.

Custody Touchdown

The former Playboy model’s filing came hours after she confirmed in an Instagram post that the couple had chosen to split.

“Today is the last day of my marriage to this beautiful man. I will forever love Hank and be open but for now we have chosen to go our own ways.”

The People article is here.

 

Extracurriculars and Child Custody

Posted by Ron Kauffman on

A contentious issue in child custody cases is a child’s extracurricular activity. The decision may be easy when the sport is badminton, but litigation is not out of bounds when the activity involves football – especially in a big football state like Florida.

Tackling Extracurricular Decision Making

As the New York Times reports, there are always questions regarding whether the child will participate in extracurricular activities. The typical questions involve which activities, who pays the costs, and scheduling the activity so it doesn’t infringe on the other parents’ timesharing are easy enough to punt.

In shared parental responsibility cases, the issue of extracurricular activities can be very divisive – especially when choosing an injury-prone sport like skateboarding and football.

How do courts tackle the issue?

Extracurricular activities are closely related to decisions about education and schooling, and the parent with sole, or ultimate decision-making authority over education, makes the final decision concerning extracurricular activities as well.

But in a shared parental responsibility case, the decision can be easily fumbled.

Florida Shared Parental Responsibility

I’ve written about parental responsibility choices before. 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 extracurricular activities, including the decision to participate in dangerous sports, 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.

A Custody Touchdown?

In the decade since scientists began to link football to long-term brain damage, the debate over the future of the sport has moved from research laboratories to the halls of Congress, to locker rooms and parents’ kitchen tables.

The growing number of disputes over the long-term consequences of football has put family court judges in the awkward position of having to pick sides on a hotly debated issue.

In most states, such as Florida, family court judges are charged with ruling in the best interests of a child’s health. In the case of sports like hang gliding or rock climbing, the dangers may be self-evident.

But the science around the long-term cognitive and neurological damage caused by football is still emerging.

Judges who side with parents trying to prevent their sons from playing tackle football end up endorsing the view that the sport is too risky, a stance that might be unpopular with voters who elect them.

Judges who side with parents who want their son to play, on the other hand, risk being accused of not being prudent enough if the boy is injured.

The New York Times article is here.

 

Child Custody and Choosing Religion

Posted by Ron Kauffman on

The mother was Christian and the father a Muslim, but she converted to Islam when they married. After they separated, the mother reverted to Christianity. When parents share or have joint child custody, who decides the child’s religion? A New York appellate court just gave the answer.

Choosing My Religion

A Brooklyn couple divorced in 2009 with one child. Their settlement agreement gave them joint legal custody, and the mother had primary physical custody.

The agreement made them consult with each other about the child’s religion, but did not specify which religion the child would be raised. The mother taught the child Christian values and practices.

The child complained the father was pressuring her to adopt Muslim practices and threatened to abcond with her to his native Morocco if she failed to follow Muslim practices and customs.

The child asked the mother to call the police and school personnel. The mother filed for sole legal custody, and the father petitioned to enforce visitation and to enforce a purported oral agreement that the child would be raised as a Muslim.

Florida Custody and Religion

I have published an article on 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 our 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.

Ironically, that may not be the rule all over Florida. Different appellate courts in Florida have slightly different takes on the issue, and the question of whether a trial court can consider a parent’s religious beliefs as a factor in determining custody has been allowed.

The Brooklyn, New York case involved the modification of an existing joint custody order.

In Florida, the person seeking modification of custody must show both that the circumstances have substantially, materially changed since the original custody order, and that the child’s best interests justify changing custody. Additionally, the substantial change must be one that was not reasonably contemplated at the time of the original judgment.

Losing My Religion

Back in Brooklyn, the Family Court granted the mother’s to modify joint custody, and give her sole legal custody but granted the father liberal visitation, including on all major Muslim holidays.

The parties’ inability to agree on the child’s religion, the change in the child’s relationship with the father, her fear of his displeasure for not being a “true Muslim,” and her belief that he’d kidnap her to Morocco, constituted changes in circumstances.

The appellate court held that awarding the Mother sole decision-making authority with respect to religion was in the child’s best interests because the father’s actual or perceived insistence that the child follow Islam and threats to abscond to Morocco had a serious adverse effect on the child’s relationship.

The opinion in Baala v. Baala is here.

 

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.

 

Losing Custody through Parental Alienation

Posted by Ron Kauffman on

In Britain, parents can now lose child custody, and even be denied contact with their children, if they attempt to poison their children against the other parent under a new pilot program to stop parental alienation. What is parental alienation and why should you lose custody over it?

According to the London Independent, the groundbreaking initiative, being tried by the Children and Family Court Advisory and Support Service (Cafcass), is designed to tackle the problem officially known as “parental alienation” where one parent turns a child against the other so they do not want to see them.

In the UK, Cafcass represents children in family court cases to make sure that children’s voices are heard and decisions are taken in their best interests.

Cafcass is independent of the courts, social services, education and health authorities. It was established in 2001 to bring together the family court services previously provided by the Family Court Welfare Service, the Guardian ad Litem Service and the Children’s Division of the Official Solicitor’s Office. It is accountable to the Secretary of State at the Ministry of Justice.

Cafcass – which has been criticized for being slow to tackle the issue – said the problem is widespread and occurs in a substantial number of the 125,000 cases it deals with annually.

Florida Child Custody Modification

I’ve written about interstate and international child custody issues before, and how to modify child custody provisions.

The custody provision in a final judgment can be materially modified only if:

  • there are facts concerning the welfare of the child that the court did not know at the time the decree was entered, or
  • there has been a change in circumstances shown to have arisen since the decree.

To satisfy the substantial change of circumstances test, the party seeking modification must show both that the circumstances have substantially, materially changed since the original custody determination and that the child’s best interests justify changing custody.

Parental Alienation

Parental Alienation is a mental condition in which a child – usually one whose parents are engaged in a high-conflict separation or divorce – allies strongly with one parent and refuses without good cause to have a relationship with the other parent.

This process takes place when a parent or caregiver encourages the child’s rejection of the other parent.

Parental alienation is driven by the false belief that the rejected parent is evil, dangerous, or not worthy of affection.

When the phenomenon is properly recognized, the condition is preventable and treatable in many instances.

Parental alienation, if proved by competent, substantial evidence, can justify a request for a modification of a time-sharing provision in a final judgment.

Parental Alienation in Britain

Cafcass’s, Sarah Parsons, said: “We are increasingly recognizing that parental alienation is a feature of many of our cases and have realized that it’s absolutely vital that we take the initiative.

Our new approach is groundbreaking.

From spring 2018, Cafcass caseworkers will be issued with guidelines known as the “high conflict pathway” setting out steps social workers should take when dealing with suspected cases of parental alienation.

The pathway will spell out at what stage children should be removed from the parent responsible for the alienation and placed with the “target parent”.

A father who was the victim of alienation, speaking anonymously, told the Guardian:

I’ve lived through and witnessed the inexorable alienation of my older daughter over the past five years, which has culminated in complete loss of contact.

The Independent’s article on alienation 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.

 

Custody & Addiction

Posted by Ron Kauffman on

Custody and addiction do not mix, as the Pitts are finding out. Brad Pitt is opening up for the first time about his pending divorce from Angelina Jolie. The 53-year-old actor says he has quit drinking since then and is seeing a therapist.

The Pitt Divorce

Pitt tells GQ Style magazine that the recent chaos in his personal life was “self-inflicted.” Jolie filed for divorce from Pitt in September, days after it was reported that Pitt was abusive toward their 15-year-old son on a plane. Pitt was eventually cleared by authorities.

Custody & Substance Abuse

Alcohol is legal, and certain type of drugs – although illegal in Florida, but becoming legal in many states – can have a big impact in your custody or divorce trial, because it impacts how the court crafts a parenting plan, including the time-sharing with children.

Generally, for purposes of establishing or modifying any kind of parenting plan – which governs each parent’s relationship with his or her child and the relationship between each parent – courts look to the best interest of the child as the primary consideration.

However, what does the “best interest” test for child custody mean when discussing drug or alcohol abuse?

A determination of the best interests is made by evaluating a number of statutory factors affecting the welfare and interests of the child and the family, including, the parents’ ability to maintain a substance abuse free environment for the child.

An interesting area of law, and one in which I’ve litigated at the trial and appeal levels is how do you prove a parent is addicted to drugs or alcohol? The easy answer is testing, but testing is not always easy.

A compulsory drug testing is authorized only when the party submitting the request has good cause for the examination. Under the rule, if you request your spouse get tested, you have the burden of showing both the “in controversy” and “good cause” prongs have been satisfied before the court can order testing.

Addiction & Divorce

I’ve written about the intersection of addiction and custody before. Ironically, scientists at the University of Buffalo’s Research Institute on Addictions found that couples where only one spouse was a heavy drinker had a much higher divorce rate than other couples.

However, when both spouses were heavy drinkers, the divorce rate was the same as for couples who were not heavy drinkers at all. And that’s the surprising outcome:

50% of couples in which one partner was imbibing significantly more than their spouse ended up divorcing. However, that number dropped to 30% for couples who possessed similar drinking habits, regardless of if they were heavy or light drinkers.

What researchers have concluded is that heavy drinking spouses may be more tolerant of negative experiences related to alcohol due to their own drinking habits.

The Pitts

Make no mistake, heavy drinking can ruin your life. From a divorce perspective, it is interesting that divorce rates are worst for marriages in which one spouse drinks heavy and the other does not. The research may mean that differing behavior is to blame, not alcohol.

Brad Pitt says he and Jolie have agreed to “work together” on shared custody of their six children because it’s “very jarring for the kids, to suddenly have their family ripped apart.”

Pitt says he has to focus less on work and more on listening to his children.

Parent Free Speech: Can the Judge Gag You?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, March 18, 2016.

Can a child custody judge order you not to speak to your children about something? A Washington mother just found out the hard way.

I’ve written about free speech and divorce after a Venezuelan mother was ordered not to speak Spanish to her child. But, what about the content of your speech, can a judge stop you from talking?

A Washington State husband, Charles Black, learned a surprise from his wife, Rachelle Black. They were married for 7 years, had three children, and raised their children in a conservative Christian home; sending them to religious-based schools.

Seven years after marriage, Rachelle told Charles that she was gay, and began a romantic relationship with another woman. Two years later, Rachelle filed for divorce.

Rachelle told the children she was gay, gave her oldest child a book about sexuality and faith, and showed the two oldest children a documentary about a transgendered child.

The trial judge felt it will be too challenging for the children to reconcile their conservative religious upbringing with the changes occurring within their family’s sexuality, and ordered

“that the mother refrain from having conversations with the children regarding religion, homosexuality, or other alternative lifestyles”

The Washington Court of Appeals reversed:

Our courts have upheld restrictions on certain types of unprotected speech when they have served the best interests of the child. But while the welfare of children is the State’s paramount concern in dissolutions, restraining speech merely based on content presumptively violates the First Amendment . . .

[E]ven in the context of family law, content-based speech restrictions are presumptively unconstitutional.

The trial court also gave the Father ultimate decision making for the children’s religious upbringing, and the court reversed that ruling too:

There must be a substantial showing of actual or potential harm to the children from exposure to the parents’ conflicting religious beliefs; this harmonizes the children’s best interests with the parents’ constitutional rights to free religious exercise.

The opinion of the Washington State Court of Appeals Division Two is here.