Tag: Child Custody Tips

Coronavirus makes Child Custody Tricky and More Good Information

Home schooling and being quarantined for weeks, the coronavirus pandemic is causing chaos for everyone. But for parents who are divorced or separated, child custody is even more tricky. There’s also some good information about coronavirus.

Coronavirus Custody

Parenting in the time of the Coronavirus

Courts are open, our office is open (remotely), and we are handling new divorce cases and child custody matters. And what we’re seeing are recurring problems during the coronavirus crisis with alimony and support payments, and especially sharing the children.

Courts may be open, but there is definitely a backlog with remote courts, and courts are handling emergencies first. That means many parents may have to hammer out their differences largely without the help of a judge.

As the Wall Street Journal recently reported, across the country, many family courts are closed or considering only emergency cases, such as those involving domestic violence and restraining orders.

Some jurisdictions, like Texas, require that existing custody agreements be followed even when schools are closed. (Families can get help from marriage and family therapists and professional mediators.)

Florida Child Custody

I’ve written about child custody issues before. In 2008, Florida modified its child custody laws to get rid of outdated and negative terminology about divorcing parents and their children to reduce animosity.

Florida 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.

But the “best interest of the child” is not an empty slogan. In Florida, how you act during the coronavirus can impact a judge’s decision. In determining the best interest of the child, a court has to consider things like a parent’s facilitating and encouraging parent-child relationships, honoring the time-sharing schedule, and being reasonable when changes are required.

Coronavirus Custody Concerns

Do not be surprised if the parents who aren’t cooperating during the coronavirus crisis find that the other parent uses what happens in court at trial.

In a few weeks or months, family courts are going to re-open, and there will be some accountability for the actions parents are taking now.

Enhancing risk and damaging your co-parenting relationship, those are things that are relevant to how the court. views your parental status.

Coronavirus Good News and Information

Good information? How about social distancing tips from a hermit? Billy Barr is the only resident of Gothic, Colorado, and he has tips on social distancing:

  • Keep track of something. Each day, Barr tracks the weather for a number of groups including the Colorado Avalanche Information Center.
  • Keep a routine. Barr wakes up around 3:30 a.m. or 4 a.m., and files weather reports to different agencies.
  • Celebrate the stuff that matters, rather than the stuff you’re supposed to celebrate. Barr has mostly ditched holidays and birthdays, but he does celebrate Jan. 17, when sunrise goes back to what it was on the solstice.
  • Use movies as a mood adjuster. When Barr is really stressed, he’ll might watch an animated movie, something cute and funny. Movies like “Pandemic” he passes on, but; The Princess Bride’ is a favorite.

The Minnesota Public Radio article is here.

The Wall Street Journal article is here.

Child Custody and a New College Cheating Scandal

Want to lose custody of your child? You might think a post on how to lose custody may be irrelevant. You would be wrong. As it turns out, some parents are trying to lose custody of their children on purpose, as part of the new child custody and college cheating scandal.

custody college scandal

Really Desperate Housewives

Felicity Huffman, who played Lynette Scavo on Desperate Housewives, pled guilty to fraud charges in the college exam cheating scandal, for paying $15,000 to an organization that helped her daughter cheat on the SATs.

Not unlike the Felicity Huffman fraud, this new scheme involves families giving up custody of their children to relatives or friends. Their children are then filing for financial independence, opening the door to financial aid they couldn’t get while in their parents’ custody.

The University of Illinois started investigating after high school counselors from “fairly wealthy neighborhoods” had called to inquire about low-income orientation programs they were unfamiliar.

The university dug deeper and found a pattern of students entering into a legal guardianship, though they were still supported by their parents.

The scheme bears similarity to tactics adopted by Rick Singer, the mastermind behind the nation’s largest college admissions scandal. In Singer’s scheme, rich families secured advantages normally dedicated to students in need.

For instance, Singer would instruct clients to have their children diagnosed with disabilities. As a result, they got more time to take the ACT and SAT, college admissions tests, which could translate to higher scores.

Florida Child Custody and College

It is easy to see why a parent could be tempted into giving up child custody for free college tuition. College is expensive, and is getting more expensive. The main reasons for tuition inflation include a surge in demand, a lack of state funding, a need for more faculty members and money to pay them, and ballooning student services. Some states require parents to support their children while in college.

I have written about parents having to support their children into adulthood before. In Florida, the duty to provide support for a child is based upon the child’s incapacity and the child’s need of protection and care.

A parent’s legal duty to support his child usually ends at the age of majority – 18. But a parent will still owe a duty of support to an adult child in extraordinary circumstances, such as when the child suffers severe physical or mental incapacitation.

Recently, Florida’s child support statute was changed to require all judgments awarding child support to include a provision stating that child support will terminate on the child’s 18th birthday unless the court finds otherwise, or it is otherwise agreed to.

To extend support beyond age 18, there must be a child who is dependent due to mental or physical incapacity that began prior to age 18; or the child has reached 18, is still living at home, attending high school, and reasonably expects to graduate high school before age 19.

Florida law does not follow other states in finding that college is a “necessary education” requiring child support. In Florida, a parent’s duty to pay an adult child’s college expenses is moral rather than legal.

When parents in a divorce agree to educate their child after the child reaches 18, the agreement may be enforced. However, the obligation is not viewed as child support in Florida, but a contractual duty arising from the marital settlement agreement.

Not a Full House

Facing a maximum of 40 years in prison, actress Lori Loughlin of Full House, is accused of paying $500,000 to have her daughters billed as recruits for the University of Southern California crew team, even though neither of them participates in the sport.

Since the Loughlin fraud was exposed, more people are taking notice. Recently, the University of Illinois identified three students who had used guardianship to gain extra financial aid and potentially 11 students in the coming academic year.

It’s still unclear how widespread the pattern might be, and ProPublica reported it had found more than 40 similar cases where students may have benefited from the model.

While the practice might be legal, it will likely be seen by many as rich families taking advantage of resources clearly aimed at the less well-off. It also comes at a time when college costs continue to rise and more students take out loans, both private and public, to finance their education.

It’s also unclear how much money these students might have been able to secure. The maximum yearly amount for a federal Pell Grant is roughly $6,200, which students need not pay back.

There is no shortage of targets. The University of Illinois offers a program that promises free tuition for four years to in-state families earning $61,000 or less. There is also the Illinois Promise, which covers tuition, fees, room and board, and other costs.

The Pro Publica article is here.

 

Western Women in Arabia and Child Custody

An American mother just lost custody of her daughter because a Saudi judge ruled she was too Western to raise the child. Her own parents now worry they will lose both grand-daughter and daughter. An interesting case about Western Women in Arabia dealing with child custody is bubbling up in Arabia.

western woman arabia custody

Thicker than Oil

Bethany, a 32-year-old student and yoga teacher, moved to Saudi Arabia to teach at a university in 2011. She recently divorced her Saudi husband, and sought custody of their four-year-old daughter. Recently, the Saudi court concluded that she would not be a good parent.

The judge ruled in his denial of the mother’s custody of her daughter:

“The mother is new to Islam, is a foreigner in this country, and continues to definitively embrace the customs and traditions of her upbringing. We must avoid exposing (the child) to these customs and traditions, especially at this early age.”

In statements submitted to the court, counsel for the ex-husband used her social media postings as evidence of an allegedly un-Islamic lifestyle.

In translated court documents, a summary of accusations against her includes the fact that she had gone to US festival Burning Man, which is characterized as “the world’s strangest festival” where attendees “appear in crazy clothes and stay awake all night dancing and surrounded by people wearing only shoes made of fur, or drinking drugs (sic) or cold drinks.”

According to the judge’s notes, counsel for her ex-husband also accused her of maintaining social media channels “full of nudity, intermingling of the two sexes and a lot of things and actions contrary to our religion and customs and traditions.”

In court, Bethany countered that her ex-husband was actually the unfit parent, alleging that he was verbally abusive and used drugs. “There was drug use and that became an issue,” her mother told CNN. Her ex-husband has denied the accusations, and did not respond to requests for comment from CNN.

Florida Child Custody

I’ve written about child custody issues 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.

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.

While social media evidence can be useful in determining some of the factors in the statute, being “new to Islam” and “embracing the customs and traditions” of a parent’s upbringing are not factors a court in Florida would consider unless harm to the child can be shown.

Oil Well that Ends Well?

The judge ultimately granted custody of Zaina to her Saudi grandmother, who lives with Zaina’s father.

“The fact that the father is residing with his mother is likely a temporary situation. Knowing that it is in men’s nature not to stay at home and not to honor/fulfill parental role themselves.”

Bethany was given until this Sunday to appeal the judge’s custody ruling, and for now, the child remains with her. But her parents tell CNN that there is a warrant out for her arrest after she missed a child visitation from her ex-husband– a visitation her parents say she didn’t know about.

They also say that Bethany has been banned from leaving Saudi Arabia for the next 10 years, though they were not able to provide further detail on the reason.

She wants to have the rights to go and come. She used to have that right says Bethany’s father. He says a judge also warned his daughter not to talk to the media.

Shifting Sands

Saudi Arabia has taken tentative steps towards the emancipation of women in recent years.

In 2012 Saudi women were allowed to compete at the Olympic Games for the first time. In 2015, women were allowed to vote in local elections for the first time. And recently, after a sustained campaign, women were allowed to drive.

At the end of this month, women will be allowed to hold a passport without needing permission of a male “guardian.” Nevertheless, the controversial guardianship system remains largely intact.

“A woman, from birth to death, must have a male guardian. The idea is that they are not capable and that men know better.”

Women still need a male guardian’s permission before having elective surgery, for example. And critically for Bethany, by Saudi law, a woman’s testimony is worth only half that of a man’s.

“Speaking generally, the U.S. Department of State and our embassies and consulates abroad have no greater responsibility than the protection of U.S. citizens overseas. US citizens abroad are subject to local laws,” the official added.

Bethany is now racing to collect all the necessary documents to appeal the custody ruling before the window closes this Sunday.

The CNN article is here.

 

Measles, Vaccines, and Child Custody

August means school has started in Florida. There is also currently a measles outbreak going on in Florida, and many parents are not vaccinating their children.The recent death of Rotem Amitai, an airline flight attendant who contracted the killer disease on a flight, means the issue of measles, vaccines, and child custody is spreading again.

Getting to the Point

Measles starts like a common cold, with runny nose, cough, red eyes and fever. Often there is a characteristic rash. But measles is not always mild; it can cause pneumonia and encephalitis (a brain infection), both of which can be permanently disabling or even deadly.

From January 1 to August 8, 2019, 1,182 individual cases of measles have been confirmed in 30 U.S. states. This is the greatest number of cases reported in the U.S. since measles was declared eliminated in 2000.

The most at risk are children who have not yet been fully vaccinated. Two measles cases are in Florida already: one in Broward and the other in Pinellas County.

The reason children are most at risk is simple: Increasing numbers of parents are not vaccinating their children. It wasn’t always this way. Some state’s records show that during the 2004-05 school year, vaccination rates for kindergartners in one county were above 91%. During the 2017-18 school year, the same county had an immunization rate of 76.5%.That puts their children at risk, and the rest of us too.

Florida Child Custody

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.

Florida Vaccinations and Child Custody

My article on the relationship between vaccinations and child custody in Florida has been cited 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.

A Dose of Reality

We’ve gotten so used to being disease free. People forget measles was a killer disease which took the lives children. Since the risk of catching measles dropped after it was eliminated twenty years ago, we have begun to think we can’t catch it, or that the vaccines which have protected us are worse than the disease.

Parents’ decisions not to vaccinate their children, because of various reasons, harms society’s immunization against these diseases. It can potentially harm weaker populations.

Although there is no express case law determining custody on the decision to vaccinate, with the school year underway in Florida, the outbreak of measles in two Florida counties now, the decision to get the recommended vaccines may impact your child custody case.

The Ynet news article is here.

 

Banning Sex While Separated

Are you looking to dive back into the dating pool while you are going through a divorce or child custody battle? If so, did you know there are bills which would ban sex while separated and even from having sex at home until all legal proceedings are finalized? This post considers the hot topic of dating during the divorce and child custody process.

Banning Sex While Separated

Prudish Pilgrims

One measure, first proposed in Massachusetts, would make it illegal for parents in going through a divorce to engage in a dating or sexual relationship with anyone within the marital home. The Massachusetts measure, which was first proposed a few years ago and has not passed yet, seems highly improbable of ever passing.

The Bill provides:

“In divorce, separation, or 209A proceedings involving children and a marital home, the party remaining in the home shall not conduct a dating or sexual relationship within the home until a divorce is final and all financial and custody issues are resolved, unless the express permission is granted by the courts.”

It is a big question whether a bill like the Massachusetts proposal could ever pass a state legislature.

Florida & Sex While Separated

I’ve written about child custody issues before, including how spanking can impact custody. First, Florida does not use the term “custody” anymore, we have the parenting plan concept. For purposes of establishing a parenting plan, the best interest of the child is the primary consideration.

The best interests of the child are determined by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including evidence of the demonstrated capacity and disposition of each parent to upon the needs of the child as opposed to the needs or desires of the parent.

Additionally, courts are supposed to consider the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity and the moral fitness of the parents.

Banning Sex for Sox Fans

While some couples use separation as an opportunity to decide whether or not they can salvage their marriage, others are left simply waiting until they can finalize their divorce.  Separated couples want a defined set of rules regarding dating and sex after separation. The Massachusetts bill, were it to pass, could have implications many have not thought of.

Many people would be surprised to know that adultery is a crime in Florida. Whoever lives in an open state of adultery may be guilty of a crime in Florida. Where either of the parties living in an open state of adultery is married, both parties shall be deemed to be guilty of the offense provided for in this section. A criminal record of adultery could be problematic.

Having sex during the separation does not automatically prohibit you from receiving support or alimony, however, evidence of it may be a factor a court looks to in modifying or terminating alimony based on the existence of a supportive relationship.

Sexual relations during separation may affect custody when and if it impacts the children.  A family court judge has to consider what is in the children’s best interests when determining custody.  Whether or not this affects the children’s best interest depends on the surrounding circumstances. Divorce and child custody proceedings are an emotional process. Moving on with someone new too quickly may make it harder to resolve the case.

The Massachusetts bill is here.

 

Alabama Getaway: Custody Rights of Rapists

Thousands of pregnancies occur as a result of rape. Surprisingly, states are split over giving a father custody of a child conceived as a result of his act of rape. That is because parenting is a fundamental constitutional right. With Alabama’s strict new anti-abortion law, and other states looking to pass bills restricting abortion, the custody rights of rapists may be back in court.

Rape and Custody

Southern Man

According to the Washington Post, a young woman came to Family Services in Alabama last year saying she had been raped by her step-uncle. The rape crisis advocate heard the victim say something that “killed me, shocked me”:

The step-uncle, who was getting out of jail after a drug conviction, wanted to be a part of their child’s life. And in Alabama, the alleged rapist could get custody.

Incredibly, Alabama is one of two states with no statute terminating parental rights for a person found to have conceived the child by rape or incest, a fact that has gained fresh relevance since its lawmakers adopted the nation’s strictest abortion ban last month in May.

That new Alabama statute even outlaws the procedure for victims of sexual assault and jails doctors who perform it, except in cases of serious risk to the woman’s health.

Sweet Home Florida

I’ve written about the phenomenon of a rapist trying to get custody before, and it is actually a national problem.

Statistics, like the number children conceived as a result of sexual battery, are sobering. Each year, there are approximately 32,000 pregnancies resulting from rape, according to a 1996 study by the American Journal of Obstetrics and Gynecology.

Congress got involved. The Rape Survivor Child Custody Act (the “RSCCA”) was made into law as part of the bipartisan Justice for Victims of Trafficking Act.

The RSCCA authorizes the U.S. Attorney General to make grants to states that pass legislation terminating the parental rights of men who father children through rape.

Many states adopted laws terminating parental rights in rape cases after Congress passed the RSCCA, granting additional funding to help sexual assault victims in states that allow courts to end parental rights when there is “clear and convincing evidence” that a child was conceived by rape.

However, some states require a rape conviction to terminate parental rights. But activists argue that the conviction standard is too high. The statistics they cite to are highly contested, but they argue three out of four rapes go unreported and less than 1% of all rapes lead to criminal convictions with incarceration.

Florida has been a part of this national trend. The child’s best interest is the guiding principle in establishing a parenting plan and for ordering a timesharing schedule in Florida.

Under Florida law, if a court determines by clear and convincing evidence that a child was conceived as a result of an act of sexual battery, the court must presume that termination of the father’s parental rights is in the best interest of the child if the child was conceived as a result of the unlawful sexual battery.

The action to terminate the parental rights of the rapist under the Florida Statute may be filed at any time and generally doesn’t require proof of a proof of a guilty plea or conviction in a criminal proceeding.

They Call Alabama the Crimson Tide

While the Alabama abortion law has been challenged, abortion rights activists fear it could reduce access to the procedure, forcing rape victims to bear children and possibly even have to co-parent with their attackers.

Last month, Alabama lawmakers considered a bill that addressed ending parental rights in cases of rape that result in conception, but the legislature removed that language, limiting the law to cases in which people sexually assault their children.

Some anti-abortion activists have been at the forefront of efforts to pass stronger laws. Rebecca Kiessling, an antiabortion family attorney who was conceived by rape, said the laws protect women who choose to keep their pregnancies. “Maybe they wouldn’t abort or give the child up for adoption if they knew they were protected,” she said. But laws terminating parental rights in rape cases have raised controversy.

Ned Holstein, board chair for the National Parents Organization, which advocates for shared parenting after divorce, said that allowing family courts to sever parental rights based on rape accusations is “an open invitation to fraud.”

The chair of National Parents Organization argues that even if a person is convicted of rape:

“there is merit on both sides of this issue, and we have no position on it, either way.”

For those who do raise their children conceived by rape, it’s not unheard of for the men to seek involvement in their lives. Analyn Megison, a former Florida attorney who was allegedly raped by a man she knew, fought him for years for custody of her daughter, who is now 14.

“When my case was going on, Florida had no legal protection in place a rapist father was better than no father at all.”

Eventually, the man stopped pursuing the case, after the judge said he wanted a “full evidentiary hearing about how the child was conceived,” she said.

The Washington Post article is here.

 

Custody and Vegans Don’t Pair Well

Child custody and religion often conflict. But can a family court judge ban a parent from feeding their child “fish, meat, or poultry” without the other parent’s consent? What if it is in the child’s best interest to eat vegetarian? A New York court had to answer that question, and the decision may leave a bad taste in your mouth.

Custody and Vegetarians

Nobu, Katz’s Deli & Carbone? Fuhgeddaboudit

In a New York custody case, the parents, who were represented by counsel, agreed to jointly determine all major matters with respect to their child, including “religious choices.”

The parenting coordinator on the case recommended that each parent be free to feed their child as he or she chooses during his or her parenting time, and that neither party shall feed or permit any other person to feed fish, meat or poultry to the child without the other party’s consent.

In their parenting agreement, however, the 24-page agreement did not otherwise mention the child’s religious upbringing and makes no reference at all to dietary requirements.

Although the parenting coordinator found that the child’s diet was a day-to-day choice within the discretion of each party, the trial court explicitly determined that the child’s diet was a religious choice, and dictated the child’s diet by effectively prohibiting the parties from feeding her meat, poultry or fish.

Florida Custody and Vegetarians

I’ve written about child custody issues before, in fact, I have an article on the intersection of religion and custody, especially when that intersection relates to harm to the child.

Knowing whether the dietary impasse between the parents is about the child’s health or religion is an important distinction. The New York dietary ban sounds very much like a religious dispute between the two parents. New York, like Florida, is a melting pot of religions and ethnic backgrounds where kosher, halal and a number of other religious dietary restrictions are common.

Of course, New York is facing another issue involving children and religion: vaccinations. With the recent outbreak of vaccine preventable diseases, such as the New York measles outbreak, lawmakers in New York voted last week to end religious exemptions for immunizations.

Usually, religion is used by the objecting parent as a defense to vaccinating children. In the New York case, the dispute was what to feed the child. Whenever a court decides custody, or issues relating to the child’s upbringing, 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.

Custody and the Big Apple

The New York appellate court found the family judge abused its discretion with the ban on feeding certain foods. To the extent mother promised the father, in contemplation of marriage, that she would raise any children they had as vegetarians, the promise is not binding.

The court felt this was particularly in view of the parenting agreement, which omits any such understanding. Nor was there any support in the trial record for a finding that a vegetarian diet is in the child’s best interests.

Recall that in Florida, whenever a family judge has to decide custody, or issues relating to the child’s upbringing, the sine qua non is the best interests of the child. The Mother’s argument that she should have been granted final decision-making authority with respect to the child was improperly raised for the first time in her reply brief.

In any event, the appellate court found that the record does not support her contention that the totality of the circumstance warrants modification in the child’s best interests.

The New York Court of Appeals declined to hear the case. The opinion is here.

 

Child Abduction and an Old Fish

The U.S. Supreme Court does not typically hear child custody cases, but just agreed to hear an international child abduction case. A baby brought here from Italy by her Mother after her marriage collapsed has to return the baby to Italy. Incredibly, the decision may rest on how smelly a five-week-old, unrefrigerated dead fish is.

Child Custody

That’s Amore

The father, Taglieri is an Italian, and the Mother, Monasky, is an American. They met in Illinois. Taglieri, who was already an M.D., was studying for his Ph.D. and worked with Monasky, who already had a Ph.D.

They married in Illinois in 2011 and two years later, moved to Italy to pursue their careers in Milan, where they each found work. Their marriage had problems, including physical abuse.

In June 2014, Taglieri took a job at a hospital three hours from Milan. Monasky stayed in Milan, where she worked at a different hospital. Monasky had a difficult pregnancy, which, when combined with the long-distance separation, strained the relationship further. To make matters worse, she didn’t speak Italian or have a valid driver’s license, increasing her dependence.

During this time, the two argued but also jointly applied for Italian and American passports for their daughter. Two weeks later, Monasky left for the United States, taking their eight-week-old with her.

Taglieri filed an action in Italian court to terminate Monasky’s parental rights, which was granted. Then he filed a petition in Ohio seeking A.M.T.’s return under the Hague Convention.

International Child Abduction

I have written – and spoke earlier this year – on international custody and child abduction cases under The Hague Convention.

The Convention’s mission is basic: to return children “to the State of their habitual residence” to require any custody disputes to be resolved in that country, and to discourage parents from taking matters into their own hands by abducting a child.

The key inquiry in many Hague Convention cases, and the dispositive inquiry in the Taglieri case, goes to the country of the child’s habitual residence. Habitual residence marks the place where a person customarily lives.

Many people don’t realize it, but the Hague Convention does not actually define the key term ‘habitual residence.’ There are a couple of ways to determine it. The primary way looks to the place where the child has become “acclimatized.” The back-up inquiry for young children too young to become acclimatized looks to where the parents intend their child to live.

When the order hits your eye like a dead fish…

The issue for the appellate court was how they should review the trial judge’s ruling that Italy is the habitual residence of the baby girl.

The trial judge in this case gave a lot of weight to the fact that the parents agreed to move to Italy for their careers and lived as a family before A.M.T.’s birth; they both secured full-time jobs in Italy, and the Mother pursued recognition of her academic credentials by Italian officials.

On the other hand, the mother argued she expressed a desire to divorce and return to the United States; she contacted divorce lawyers and international moving companies and they jointly applied for the baby’s passport, so she could travel to the United States.

Faced with these facts the trial judge can rule in either direction, and after fairly considering all of the evidence, the trial judge found that Italy was A.M.T.’s habitual residence. The Sixth Circuit Court of Appeals decided:

We leave this work to the district court unless the fact findings “strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.”

The U.S. Supreme Court will consider how appellate courts review a trial judge’s ruling on habitual residence. Is it reviewed under de novo standard, under a deferential version of de novo review, or under clear-error review?

Another question being considered is whether a subjective agreement between an infant ‘s parents is necessary to establish habitual residence when the infant is too young to acclimate.

The opinion is here.

 

Child Custody and Technology

As the Wall Street Journal reports, divorce brings out the worst in parents already bickering with each other. Even an argument about where a kid is dropped off can end up in court. New high-tech tools to ease this stress is where child custody and technology meet.

child custody and technology

There’s an App for that!

Created by divorced parents, divorce and family law attorneys and judges who saw a need to create a better way for families to communicate, these new apps link child custody and technology, and allow parents to document their compliance with the parenting plan.

Some have a check-in feature so parents can prove that they picked up or dropped off their children when and where they were supposed to. Others use artificial intelligence to flag messages written in an aggressive tone, reminding parents to keep their communications civil.

Most have calendars that help both parents keep track of their children’s activities and appointments—no matter whose day it is.

Florida Child Custody

I’ve written on Florida’s child custody issues before. In Florida, a Parenting Plan is required in all cases involving time-sharing with minor children, even when timesharing is not in dispute.

A “Parenting plan” is a document created by Florida statute to govern the relationship between parents relating to all of the decisions that need to be made about their children.

Parenting plans must contain a time-sharing schedule for the parents and kids. But there are more issues concerning minor children besides who they spend time with. For example, issue about a child’s education, health care, and physical, social, and emotional well-being are also included in the plan.

If the parties cannot agree to a Parenting Plan, a plan will be established by the court. If the plan is approved by the court, it must, at a minimum, describe in adequate detail the methods and technologies to communicate with the child.

Because of Florida’s express embrace of technology in parenting plans, it is no surprise these child custody and technology apps for parents are increasingly included. So, what are they?

Talking Parents

Candis Lewis, a mother of three who lives on a military said the Talking Parents app she was ordered to use eliminated the stress of arguing over whether a text message or email was received. All messages in the app are time-stamped and show exactly when the other parent read them.

Cozi

When they were married, Amy and Jason Cooper began using a family-management app called Cozi, which features a calendar and shopping lists. They stuck with it after they began divorce proceedings, finding it aided their ability to manage their two children.

coParenter

Yaquiline Zarate has been using the coParenter app to improve communication with the father of her son. The app allows them to seek real-time professional mediation when parenting conflicts arise.

The app, co-created by a retired judge, allows parents to text family-law professionals to mediate conflicts, rather than go to court. Earlier this year, when it was her ex-boyfriend’s night to take their son out for a visit, she urged him to let the boy stay home with her because he was sick and it was cold. The father didn’t agree, she said, so he tapped the “get help” button in the app. A mediator convinced him that it was in the boy’s best interest to stay put that night.

High Tech Problems & Solutions

Some parents like the fact that they can silo all communications with their ex. It’s better than having a message pop up in their regular inbox when they’re unprepared to deal with it.

When you get an email from the other side, you want to throw up. Whenever I get an email from my ex I assume the worst and this way I can leave it in the app and look at it when I’m ready. If it comes to my inbox, it can ruin my day.

The apps aren’t a panacea. Stephen admits he doesn’t always respond to the messages his ex sends him in the app. “The court order says we have to use OurFamilyWizard to communicate, but it doesn’t say we have to communicate.”

Whatever the drawbacks, there’s evidence that these apps connecting child custody and technology help the people who need it most: the children themselves.

The Wall Street Journal article is here.

 

Who’s Your Daddy? Florida’s New Paternity Law

If it is a wise child that knows its own father, the Florida Supreme Court just created a new paternity law last week to help children know their true fathers. The court settled whether a biological father is prohibited from establishing his parental rights to his child if the child was born to a married woman.

Not Your Father’s Paternity Law

Perkins is the biological father of his daughter. Perkins and the child’s mother, Simmonds, engaged in a three-year relationship. Unknown to Perkins, his girlfriend was already married to another man.

When Perkins – the biological father – wanted to assert his child custody rights over his daughter, Simmonds and her husband, Ferguson, objected. Ferguson – the legal father – asserted his status as the child’s legal father– by virtue of his marriage to Simmonds – to block Perkins’ rights over his daughter.

Some interesting facts about the case:

  • Perkins was at the hospital for the child’s birth. Ferguson was not.
  • Simmonds declined to have Ferguson’s name listed as on the birth certificate. Simmonds gave the child Perkins’s last name and raised the child with Perkins.
  • Perkins and Simmonds lived together with the child.
  • Perkins has taken the child to doctor’s visits and enrolled the child in day care. Perkins regularly and voluntarily paid child support to Simmonds for the child.
  • The child knows Perkins as “daddy.”

So what’s the problem?

The problem in this case is that after Perkins filed a petition to establish paternity Simmonds moved to dismiss it, saying Perkins can’t establish paternity because of the common law presumption of legitimacy. That presumption is one of the strongest in Florida law.

Florida Paternity Law

I’ve written about paternity issues before. Sadly, for Perkins, after an evidentiary hearing, the trial judge ruled that it was bound by precedent to dismiss his petition.

In Florida, a putative father had no right to seek to establish paternity of a child who was born into an intact marriage, when the married woman and her husband object.

Although the trial judge held an evidentiary hearing and found that the facts strongly indicate that allowing Perkins to have “some involvement in the child’s life” would be in the child’s best interests, the trial court ultimately concluded that it was constrained by Fourth District precedent to dismiss the petition as a matter of law.

The Father of All Custody Conflicts

There’s been a conflict among Florida courts over this issue. Florida law presumes that the husband of the biological mother of a child is the child’s legal father.

This presumption is one of the strongest rebuttable presumptions known to law and is based on the child’s interest in legitimacy and the public policy of protecting the welfare of the child.

In Florida, many courts have held that a biological father has no right to seek to establish paternity of a child who was born into an intact marriage when the married woman and her husband object.

Some courts in Florida have gone so far as to suggest that the presumption of legitimacy may never be rebutted. While others have held that the presumption of legitimacy may be rebutted in certain, rare circumstances.

Twinkle in One’s Father’s Eye: New Paternity Law

The Supreme Court resolved the conflict and determined that the presumption of legitimacy does not create an absolute bar to a biological father’s right to seek to establish his paternity when the biological father has “manifested a substantial and continuing concern” for the welfare of the child.

The presumption of legitimacy is overcome when there is a “clear and compelling reason based primarily on the child’s best interests.”

So, for Mr. Perkins, the presumption of legitimacy has been found to be rebuttable by a biological father. Evidence that the mother’s husband has abused, abandoned, or neglected the child – although relevant – is not required to establish that it would be in the child’s best interests to recognize the biological father as the legal father.

The Supreme Court opinion is available here.