Tag: Child custody

Speaking on Interstate and International Custody

Posted by Ron Kauffman on

Honored to be speaking on interstate and international child custody issues at the prestigious Marital & Family Law Review Course in Orlando from January 26th to January 27th. I will be discussing federal and state statutes relating to child custody and family support, in addition to the Hague Convention on international child abductions. The event is co-sponsored by the Florida Bar Family Law Section and the American Academy of Matrimonial Lawyers.

Speaking International Child Custody

Interstate Custody

Parents move from state to state for various reasons. It is a subject matter I have written and spoken about many times. Whether children are moved by parents wrongfully or not, moving your children creates interstate custody and support and problems.

The Uniform Child Custody Jurisdiction and Enforcement Act, and The Uniform Interstate Family Support Act, can be critical laws to know in those cases.

International Child Abductions

What happens if your children are wrongfully abducted or retained overseas? If that happens, you must become familiar with the Convention on the Civil Aspects of International Child Abduction, also known as The Hague Convention. This international treaty exists to protect children from international abductions by requiring the prompt return to their habitual residence.

The Hague Convention applies only in jurisdictions that have signed the convention, and its reach is limited to children ages 16 and under. Essentially, The Hague Convention helps families more quickly revert back to the “status quo” child custody arrangement before an unlawful child abduction.

If your children are wrongfully taken out of the country or wrongfully retained after the time for returning them passed, the Hague Convention can help you get them back.

Interstate Family Support

The Uniform Interstate Family Support Act is one of the uniform acts drafted by the Uniform Law Commission. First developed in 1992, the UIFSA resolves interstate jurisdictional disputes about which states can properly establish and modify child support and spousal support orders.

The UIFSA also controls the issue of enforcement of family support obligations within the United States. In 1996, Congress passed the Personal Responsibility and Work Opportunity Act, which required all U.S. states adopt UIFSA, or face loss of federal funding for child support enforcement. Every U.S. state has adopted some version of UIFSA to resolve interstate disputes about support.

Certification Review Course

It is a privilege to be invited to speak on interstate custody and international child abductions at the annual Family Law Board Certification Review Seminar again. The annual seminar is the largest and most prestigious advanced family law course in the state. Last year’s audience included over 1,600 attorneys and judges from around the state.

The review course is co-presented by the Family Law Section of The Florida Bar, and the American Academy of Matrimonial Lawyers.

Registration information is available here.

January is Divorce Month

Posted by Ron Kauffman on

Men’s Journal magazine is currently reporting that – while there may be no “good” time to divorce – many people have started to call January the “divorce month.” Why? Because January is when there is a big increase in couples filing for divorce and child custody, or just scheduling appointments to speak with divorce and family lawyers.

January Divorce Month

Happy New Year

The timing is certainly no coincidence. January follows a busy holiday season. During this time, many people make New Year’s resolutions, which may cause you to want to hit the “reset button.”

“The pressure of the Christmas period where people are being exposed to their families and in-laws, often is the catalyst for people making the decision to end their marriages.”

Beyond dealing with extended family, there are a lot of financial pressures which can also be a “huge stressor” for families around this time of year. Add in inflation and the current cost-of-living, the holiday season can be difficult.

Many people also use January as a period of reflection because they are on holiday from work, and have the time to think about what is going on in life and what they might like to change.

The cold and holidays also forces many couples in close proximity with extended family. Many people are pushed toward a ‘new year, new me’ mindset because they are spending more time with their significant others, spouses, and family than any other period throughout the year.

Florida No-Fault Divorce

The official term for divorce in Florida is “dissolution of marriage”, and you don’t need fault as a ground for divorce. Florida abolished fault as a ground for divorce.

I’ve written about no fault divorce and statistics about divorce – such as the January divorce month phenomenon – before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your husband’s alleged infidelity with a congresswoman. Instead, you just need to state under oath that your marriage is “irretrievably broken.”

Before the no-fault divorce era, people who wanted to get divorce either had to reach agreement in advance with the other spouse that the marriage was over, or throw mud at each other and prove wrongdoing like adultery or abuse.

No-fault laws were the result of trying to change the way divorces played out in court. No fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.

New Year, New You

In a University of Washington study, researchers analyzed filings in Washington state and found that divorces consistently peaked in March and August.

Associate sociology professor Julie Brines, who co-authored the study, says that winter and summer holidays are typically seen as “culturally sacred times for families,” and that filing for divorce can be seen as inappropriate, or even taboo, during these times.

Many couples ostensibly might think that spending Christmas together or taking the family on a summer vacation might help smooth over any marital troubles.

People tend to face the holidays with rising expectations, despite what disappointments they might have had in years past. They represent periods in the year when there’s the anticipation or the opportunity for a new beginning, a new start, something different, a transition into a new period of life. It’s like an optimism cycle, in a sense.

In any case, January is here. Happy new year.

The Men’s Journal article is here.

Divorce and Euthanizing the Family Pet

Posted by Ron Kauffman on

A New York court recently had to decide whether euthanizing the family pet without the knowledge or consent of the other parent during a divorce action violated a New York status quo order. To answer that question, the court had to first determine if the family dog was a marital asset to be distributed or a matter of custody and visitation.

pet custody 2

Cruel and Unusual?

The divorce was in May of this year. The Husband argued that the Wife vindictively violated an Automatic Order by putting their beloved family pet dog “B.” to death without reason, necessity or justification.

“B.” was their emotional support dog, and B.’s custody had not been determined. The Husband testified the Wife did not discuss B.’s medical condition or even give him an opportunity to spend time with B. before putting the dog down. As a result, he suffered extreme emotional distress over their dog’s death. The Husband asked for compensation for this loss in the amount of $1,500 as punitive damages and filed for contempt of court.

The Wife, on the other hand, argued that after the husband returned to the house with the police, he did not take the dog. The Wife also argued that the Husband’s pet was not an emotional support animal, could not even walk without a severe limp, had “too many” masses to count, and was on significant pain medication.

She also argued that she was given a prescription for a tranquilizer for the dog, transported the dog to the Vet, and the dog lunged at the Vet. Because of that, it was the Vet who recommended euthanasia.

The Husband responded that the family dog was adopted from a shelter, and that he was the dog’s sole caregiver. He denied that he was informed of the pet’s conditions, that she had the dog euthanized without his knowledge and consent. He argued that there was no urgent need for B.’s euthanasia.

Florida Pet Custody

I’ve written on the development of pet custody cases and statutes around the country before. Pet custody cases are becoming more and more prevalent as lawmakers promote the notion that the legal system should act in the best interests of animals. This is due, in part, because pet ownership has increased.

According to the American Veterinary Medical Association (AVMA), 36.5% of American households owned a dog and 30.4% owned a cat in 2012. As many of these households know, companion animals usually become members of the family.

Florida doesn’t have pet custody or visitation laws. Florida courts are already overwhelmed with the supervision of custody, visitation, and support matters related to the protection of children.

Not all states have ruled out a visitation schedule for dogs like Florida. For instance, while Texas also views dogs as personal property, in one case a Texas court authorized visitation. A new California law changed the way pet custody is handled in divorce cases. The law gives judges the power to consider the care and the best interest of the pet when making decisions.

It’s Up to You New York

The Court reviewed the text of the Automatic Orders which state that neither party can sell, transfer, encumber, conceal, or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with this action.

New York Automatic Orders are codified by a statute which is devoid of any reference to companion animals. Companion animals are not listed, nor provided in, the text of the Automatic Orders. The text of the statute only proscribes the disposition of property.

Additionally, the purpose of the law was to preserve the financial status quo of the parties. It accomplishes that goal by preventing a party in a divorce from dissipating assets in order to deprive a spouse of the property which may have monetary value.

New York statutes include pets in the equitable distribution of property section, but they also are part of the best interests analysis. Questions naturally come to mind. Was it the intent of the Legislature to continue to treat animals as property? Given that the drafters of the statute failed to include any definition – or guidance – as to how courts are supposed to determine “best interests” of animals, the Court is effectively left in a legal vortex to figure it out on its own.

The Court reasoned that the intent of the Legislature was to shift away from treating companion animals as property and ensure that they are given more consideration. Viewed in this way, the husband’s motion sounded punitive in nature, which is the antithesis of an application seeking an adjudication of civil contempt.

Additionally, even if the Court were inclined to find the Wife in contempt of court, the amount of the fine would be limited to $250. The husband had not proved the actual value of his loss of the dog and had not shown that actual loss or injury had been caused.

The court held that the euthanasia of B. the pet dog did not constitute a violation of the Automatic Orders even though the euthanasia was performed without a court order or agreement.

The opinion is here.

Grandparent Visitation and Remarriage

Posted by Ron Kauffman on

In Ohio, an order granting grandparent visitation comes into question after the remarriage of the child’s father. Does the father’s remarriage, and the adoption of the child by the new stepmother, cut off the grandmother’s court ordered visitation rights?

Grandparent Visitation

The Heart of It All

The child. L.S. was born in 2014, to unmarried parents. In 2019, a court awarded John Snyder – the child’s natural father – legal custody. At the same time, Zadunajsky, L.S.’s paternal grandmother, was granted companionship rights with the child.

Then in 2021, Snyder filed a motion to terminate or modify the grandmother’s visitation order because the child has now been adopted by his stepmother, and there is an intact family. The lower court granted the Father’s Motion for Termination without any hearing or the proffering of any evidence.

Instead, the magistrate ruled as a matter of law that in Ohio:

Once the adoption took place, the Paternal Grandmother no longer had standing to seek visitation. Once an adoption order has been entered, all grandparent visitation rights are terminated.

The lower court held there was no case law in Ohio that allows a court to grant or maintain established visitation once an adoption is granted. The legislature has not provided grandparent visitation in the case of an adoption.

This legal reality is very frustrating to courts because the main issue should be what is in the best interest of the child. The lower court also held that the Paternal Grandmother would only have standing to seek visitation upon the death of Father or the divorce of the stepmother.

The grandmother appealed arguing that an adoption by the step-mother of the child was a proper basis for terminating the pre-existing visitation of the paternal grandmother.

Florida Grandparent Visitation

Under current law in Florida, a grandparent may be awarded some visitation rights in very limited situations, such as when the child’s parents are deceased, missing, or in a permanent vegetative state. If only one parent is deceased, missing, or in a permanent vegetative state, the other parent must have been convicted of a felony or a violent offense in order for a grandparent to be able to petition for visitation.

Additionally, a Florida court has to also find that the grandparent has established a prima facie case that the surviving parent is unfit or poses a danger of significant harm to the child. If that burden is not met, the court must dismiss the grandparent’s petition.

In 2022, Florida amended the grandparent visitation law as a result of the murder of FSU Professor Dan Markel. Supporters of the amendment call it the “Markel Act.” Professor Markel was shot to death in his driveway by hitmen hired by his ex-brother in law. His ex-mother in law was recently arrested at Miami International Airport after attempting to board a one way flight to Vietnam.

The new law creates a rebuttable presumption for grandparent or step-grandparent visitation, but only in cases where one parent has been found criminally liable for the death of the other parent, or “civilly liable for an intentional tort causing the death” of the other parent.

The presumption may be overcome only if the court finds that visitation is not in the child’s best interests. The bill does not distinguish between biological grandparents and step-grandparents.

Somewhere in Ohio

The Ohio appellate court agreed with the grandmother and reversed. The opening words of the statute exempt a spouse and the relatives of the spouse from the effects of a final decree of adoption. As Snyder was spouse of the adopting stepparent and Zadunajsky was a relative of Snyder, they are exempt from those effects.

The Father also argued that previous cases affirmed divesting biological grandparents of their visitation and companionship rights. However, the legislature’s intent was to find families for children. The legislature was concerned that if adoptive parents are forced to agree to share parenting responsibilities with people they don’t know, potential adoptive parents will be deterred from adopting. But that legislative intent did not apply to the relatives of the spouse/biological parent in a stepparent adoption.

On remand, the family court may consider whether the continuation of Zadunajsky’s companionship rights is in the best interest of the child in light of the stepparent adoption.

The opinion is here.

Florida Releases Three New Child Custody Updates

Posted by Ron Kauffman on

Florida just released major new updates to our child custody and timesharing laws. With these new releases, family lawyers can expect a presumption in favor of a equal timesharing, some bug fixes, and overall improvements to enhance your user experience.

Child Custody Update

Florida Child Custody and Timesharing

Florida courts have consistently ruled that a parent’s right to the care and custody of his or her child is an important interest that is given deference unless there is some powerful countervailing interest requiring the child’s protection. Each parent also has responsibilities for their children, including supervision, health and safety, education, care, and protection.

Child custody in Florida is broken down into two distinct components: parental responsibility (which is decision-making) and timesharing (physical custody and visitation rights). Both components must be incorporated into a “parenting plan.”

Although the right to integrity of the family is among one of the most fundamental rights, when parents divorce or separate, the parents’ rights are subject to the overriding concern for the ultimate welfare their children. We call this, the “best interest” test.

Florida did not have a presumption in favor of any specific timesharing schedule. In establishing timesharing, the court always considered the best interests of the child and evaluated all factors affecting the welfare and interests of the child and the circumstances of the family.

What’s new in the latest release?

Equal Timesharing

One of the latest updates just released is a new presumption in favor of equal timesharing for both parents. According to the release notes:

There is a rebuttable presumption that equal time-sharing of a minor child is in the best interests of the minor child. To rebut this presumption, a party must prove by a preponderance of the evidence that equal timesharing is not in the best interests of the minor child. Except when a time-sharing schedule is agreed to by the parties and approved by the court, the court must evaluate all of the factors set forth in subsection (3) and make specific written findings of fact schedule when creating or modifying a timesharing schedule.

With this new update, Florida has created a rebuttable presumption that equal timesharing is in the best interest of the child at issue. As such, a court must operate under the rebuttable presumption in favor of equal timesharing when creating or modifying a parenting plan.

In order to overcome the new law’s rebuttable presumption, a party must prove by a preponderance of the evidence that equal timesharing is not in the best interests of the minor child.

The new law still generally requires a court to evaluate all factors listed under the statute, however now it requires the court to provide written findings of fact for such factors.

Modifications

A new bug fix is an update to the procedure for modification of parenting plans. Generally, a court may only modify a parenting plan and timesharing schedule after a substantial, material, and unanticipated change in circumstances has been established.

The requirement for a substantial change in circumstances promotes finality in family cases, and reflects the general belief that stability is good for children. The test to modify timesharing of a minor child is to prove circumstances have substantially and materially changed since the original custody determination; the change was not reasonably contemplated by the parties; and the child’s best interests justify changing custody.

Demonstrating a substantial change in circumstances is an extraordinary burden on users. But the burden was a design feature not a flaw. The heavy burden is intended to preclude parties from continually disrupting the lives of children by initiating repeated custody disputes.

However, when there have been significant changes affecting the well-being of the child, especially when the change of circumstances has occurred over a substantial period of time, changes may be necessary.

The new update streamlines the modification experience by removing the requirement that a party who demonstrates the alleged substantial and material change in circumstances which warrants modification of a parenting plan or timesharing schedule, must also demonstrate that the change be unanticipated.

Relocation

Another bug fix attempts to streamline the user’s relocation experience. There is currently no presumption in favor of or against a request to relocate with a child when the relocation will materially affect the current timesharing and contact with the other parent.

But simply relocating alone was not considered a substantial change in circumstances to warrant modification. If you were the user seeking to modify timesharing, you still had to overcome the substantial change test before a court could address the modification.

In custody disputes involving the relocation of a parent, courts generally conclude that the relocation does not amount to a substantial change if the relocation is not a significant distance away from the child’s current location. As such, a parent’s relocation alone is not considered a sufficient to trigger a modification of timesharing and custody under current law.

Under the new law, if the parents of a child live more than 50 miles apart when the last order establishing time-sharing is entered, and a parent subsequently moves within 50 miles of the other parent, then that move may be considered a substantial and material change in circumstances for the purpose of modifying the time-sharing schedule.

The move does not need to be unanticipated to warrant a modification of the time-sharing schedule. However, modification of the time-sharing schedule may not be permitted if the modification is not in the best interests of the child after an analysis of the statutory factors.

The new statutory amendments are here.

Version 61.13 will be available July 1st.

Child Abduction and the Grave Risk Exception

Posted by Ron Kauffman on

Few people outside of international family law attorneys know that even if a child abduction is proven, courts don’t have to return a child if the grave risk exception, or another treaty defense, is proved. The grave risk defense took center stage at a recent appeal of a child abduction case.

brazil child abduction

Garota De Ipanema

The mother, Dos Santos, and the father, Silva, met in 2011 in Brazil. They have one child together, a daughter who was born in 2012 in Brazil. The three lived together in Brazil until April 2020, when the parents separated.

In August 2021, the mother left Brazil with their daughter and traveled to the United States. The mother did so without the father’s consent to move the child permanently. to the US.

After he learned that his daughter was in the US, the father filed an application with the Brazilian central authority for the return of his child under the Hague Convention. The Brazilian government referred the matter to the United States Department of State-the United States’s central authority under the Convention.

No one disputed at trial that the mother wrongly removed her daughter from the her habitual residence in Brazil and from the lawful joint custody of her father, and abducted her to the US. Normally, that would mean the child would be promptly returned to Brazil.

But the mother claimed returning their daughter posed a grave risk that the child will be exposed to physical or psychological harm or an otherwise intolerable situation.

Hague Child Abduction Convention

I have written and spoken on international custody and child abduction under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.

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 or retaining a child.

The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

While there are several defenses to a return of a child, the grave risk defense is one of the frequently relied on, and misunderstood defenses available under the Convention.

Mas que nada

Generally, the Hague Convention has six exceptions. In the recent Brazilian case, the mother alleged the grave risk defense. Under this defense, return to Brazil is not required if there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

However, the grave-risk exception is narrowly construed and has a higher burden of proof than most of the other defenses. At the trial, the judge found that the mother had failed to establish that the child will face a grave risk of physical or psychological harm should she be returned to Brazil.

Without an established exception, the trial court granted the father’s petition for return of the child to Brazil

The Mother appealed and the appellate court reversed. The mother described an altercation between the father and her subsequent boyfriend which may have been videotaped. But the video recording was not brought in as evidence. The court also heard from two other witnesses who saw the mother with bruises and a witness who testified about threatening social media messages.

Importantly, the trial judge didn’t believe the father’s testimony. To the appellate court, that meant the trial judge should have considered the father’s testimony as corroborating substantive evidence that the mother’s allegations were true.

Because the trial judge thought there were some issues with the father, including “anger management issues” and “making threats to people”, a majority of the appellate panel felt the trial judge mistakenly felt her hands were tied.

The appellate decision is here.

UCCJEA and Gender Dysphoria

Posted by Ron Kauffman on

The UCCJEA, the scaffold of our interstate child custody system, has two dueling new exceptions related to child gender dysphoria. What will be the impact on interstate child custody lawyers with the latest UCCJEA changes sweeping the country?

UCCJEA Sex

An Increasing Health Care Concern

Children in the U.S. can identify as a gender different from the one they were assigned at birth. The number of children identifying as gender nonconforming and transgender is growing.

Health technology company Komodo Health Inc., attempted to quantify the number of children seeking and receiving care by analyzing millions of health insurance claims. Between 2017 and 2021, the number of new diagnoses of children aged 6-17 with gender dysphoria increased by nearly 178 percent.

Of these cases, a smaller number of children with gender dysphoria are choosing medical interventions to express their identity. Appropriate treatment for children diagnosed with gender dysphoria is the subject of debate internationally, and not surprisingly, among different U.S. states.

Dysphoria in the UCCJEA

I have written and spoken on many issues related to the UCCJEA as a family law attorney. Next month I will be presenting an introduction to the UCCJEA for foreign lawyers at the IV Congreso Internacional de AIJUDEFA in Mexico.

The UCCJEA is a uniform act created to avoid jurisdictional competition and conflict with other courts in child custody matters. The UCCJEA also promotes cooperation with other courts and ensures that a custody decree is rendered in the state which is in a superior position to decide the best interest of the child. The UCCJEA helps to facilitate enforcement of custody decrees; and has the aspirational goal of promoting uniformity of the laws governing custody issues.

One of the ways the UCCJEA helped to avoid jurisdictional competition in child custody matters is by solving the historic problem of different courts issuing different orders covering the same child. Under the UCCJEA one state is a child’s home state, and the home state keeps exclusive jurisdiction to modify the custody arrangement unless, for example, the child is another state and there is an emergency.

uccjea

Dueling Banjos

Periodically, child custody disputes can become emergencies. The UCCJEA provides deliverance from such disputes by authorizing any state – even if it is not the home state of the child – to take temporary emergency jurisdiction to protect a child subject to, or threatened with, mistreatment or abuse.

California recently amended its version of the UCCJEA. California Governor Gavin Newsom – fresh from having visited Florida to poke fun of Gov. DeSantis – signed a bill expanding temporary emergency jurisdiction in California under the UCCJEA.

Effective this year, California courts are now authorized to assume temporary emergency jurisdiction of children in California, who are subjected to, or threatened with, mistreatment or abuse, “or because the child has been unable to obtain gender-affirming health care or gender-affirming mental health care.”

Florida recently amended its version of the UCCJEA. Gov. DeSantis – fresh from having visited California to poke fun of Gov. Newsom – signed a bill expanding temporary emergency jurisdiction in Florida under the UCCJEA.

Effective this year, Florida courts are now authorized to assume temporary emergency jurisdiction of children in Florida, who are subjected to, or threatened with, mistreatment or abuse, “or It is necessary in an emergency to protect the child because the child has been subjected to or is threatened with being subjected to sex-reassignment prescriptions or procedures.”

The California Senate bill is here. The Florida Senate bill is here.

Religion Custody and Transgender Children

Posted by Ron Kauffman on

Whether a parent’s religion and religious beliefs can impact their ability to exercise child custody over transgender children is in the news. In Maryland, a father’s strict religious beliefs clashed with his children’s sexual orientation so much, the court had to step in to resolve the issue.

custody transgender

Fatti Maschii, Parole Femine

A Maryland couple with two children divorced in 2012. As part of their settlement, the parents agreed to joint legal custody. The Mother was to have primary physical custody, and the Father agreed to visitation every other weekend.

In 2022, Mother filed for a protective order for herself and on behalf of her two children, then aged 15 and 12. The Mother alleged the Father had caused her and the children mental injury based on abusive texts and emails he had sent to them.

At the injunction hearing, the Mother testified her older son told her he believed he was transgender. The Mother denied steering him toward identifying as transgender, but admitted she actively supported him by arranging for therapy and attending meetings of Parents, Families, and Friends of Lesbians and Gays.

When the child told his Father that he identified as transgender, the Father opposed his son’s decision and refused to call him by his preferred name. Then the child began engaging in the self-harming behavior of “cutting.”

The Father then texted his child:

“What is your email address? I’m sending you an email and I’m copying your mother and my lawyer. I’m t[ir]ed the BS manipulations. Your grandmother doesn’t call you S[.] and neither does either one of your aunts and uncle up here and for some reason my Christian beliefs are being attacked, so the intent is for a trial, so that everyone can understand what your mother that has manipulated a wedge after you and I had already came to an agreement [to call you a shortened version of your given name]. Thanks[.]”

Then the Mother testified that their second child, the younger of the two, told her he believed he was gay. The Father texted the younger child:

You can text me anytime. Just between us and call if you ever need to talk. I will tell you like I told you before—you are being heavily manipulated and influenced by your mother and sister. Son. Listen to your dad and our father who created us (God) in this matter. Please please do not allow these demons you are surrounded by influence you. Pray my son. For protection. I love you. Dad.

Father admitted: his relationship with his children is contentious, that he called the police after Mother took the children to a Pride Parade, and that he then called the Crisis Hotline and Legal Aid. He testified that he is concerned for his children’s souls and has no intent to harm them.

The trial judge found that, while the older child was “worried” he was not upset. However, the court found the younger child was “frightened” by Father’s behavior and “worries” that Father does not believe him about his sexual identity, believing instead that it has to do with Mother’s manipulation.

The court entered the protective order as to the younger child and denied the petition as to Mother and the older child. The Court prohibited the Father from abusing or threatening to abuse the younger child; from entering his residence; limited his visitation, and prohibited the Father from sending abusive texts about sexual orientation and/or religion. Father appealed.

Florida Child Custody

I’ve written about child custody and transgender issues before. Florida, unlike Maryland, does not have legal custody, but the parenting plan concept. For purposes of establishing a parenting plan, the best interest of the child is the primary consideration.

In Florida, 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. Some of the factors a Florida court looks to include the demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, and the mental and physical health of the parents. None of the statutory factors involve the gender or sex of the parent and child.

In Florida, the court must order that the parental responsibility for a minor child be shared by both parents unless shared parental responsibility would be detrimental to the child. Detriment to a child could take the form of child abuse.

Child abuse is a defined term in Florida. In part, child abuse can mean injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment in the ability of the child to function within the normal range of performance and behavior as supported by expert testimony.

Strong Deeds, Gentle Words

In Maryland, the primary goals of their injunction statute are preventative, protective and remedial, not punitive. A judge may issue a protective order if they find abuse. In Maryland, “abuse” of a child is defined as the physical or mental injury of a child under circumstances that indicate that the child’s health or welfare is harmed or at substantial risk of being harmed.

On appeal the Father argued there was insufficient evidence to find that he caused mental injury to his younger child, or that he did so intentionally. But the appellate court ruled it was the younger child’s fear regarding Father’s views about his sexual orientation – and the Father’s seeming inability to see that his views caused and could cause a substantial risk of harm to his son – that the trial court had attempted to address in its order. Accordingly, the trial court’s restraining order was affirmed on appeal.

The unpublished Maryland appellate court opinion is here.

 

Calling a Stepparent Dad

Posted by Ron Kauffman on

An important aspect of child custody arises when families reorganize, and whether it is okay for a child to start calling a stepparent “dad” and “mom”. In a recent Pennsylvania case the issue was whether a family judge can order the Child to only call her biological parents “Dad” and “Mom”.

Stepparent Name

Name Calling

A Mother and Father were married in 2012, welcomed their first and only child O.K. in 2013, and then separated five years later. Mother was a client assistant and later a stay-at-home Mom. She re-married her new husband, (the Stepfather), with whom she has two children.

In 2018, the couple agreed to a week-on/week-off shared custody schedule that continued until 2020, when the family court reduced the Father’s timesharing to the first, second, and fourth full weekends of each month during the school year.

In 2021 the Father tried to modify custody and return to a week-on/week-off shared physical custody schedule and sole legal custody as to educational decision-making.

At the modification trial, the Mother testified to having the Child baptized without notifying Father and contrary to his known wishes, and that she would not discourage the Child from calling Stepfather “dad” or “daddy”. The family judge found Mother’s actions were part of a pattern of to diminish Father’s place and authority in the Child’s life.

The family judge modified custody and returned the parties to a week-on/week-off physical custody schedule, denied the Father’s request for sole legal custody concerning educational decision-making, and importantly, held the Mother in contempt.

Mother moved to reconsider, asking the court to vacate the provisions compelling co-parent counseling and requiring the parties to correct the Child’s use of names like “Mom” and “Dad” for the parties’ significant others.

The trial court then granted Father limited sole legal custody to make medical decisions as to whether the Child receives the COVID-19 vaccination and any subsequent boosters of that vaccine and denied Mother’s emergency motion for reconsideration and injunctive relief. The Mother appealed.

Florida Parental Responsibility and Stepparents

I’ve written about parental responsibility in Florida before. In Florida, “custody” is a concept we have done away with. Florida uses the parental responsibility concept. 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.

A stepparent does not acquire all of the rights or assume all of the obligations of a child’s natural parent in Florida. Stepparents have the difficult task of raising a child that is not biologically or legally their own. Sometimes, stepparents are responsible for providing love, financial support, and supervision when there is an absentee natural parent. When a stepparent remarries and wants to have legal rights in connection with the spouse’s child, adoption is the right path.

The Constitution and Names

On appeal, the Mother argued it was wrong to restrict the child to referring only to her biological parents and “dad” or “mom” in that it violated the Child’s First Amendment right to freedom of speech.

In custody matters, the paramount concern is the best interest of the child involved. However, in cases raising First Amendment issues, a court has to examine the  record to make sure the judgment does not violate free expression.

Generally, content-based restrictions on speech are presumptively unconstitutional and are subject to strict scrutiny. Strict scrutiny requires the government to prove the restrictions are narrowly tailored to serve a compelling state interest.

While a state has an interest in protecting the physical and mental health of a child, that interest is not triggered unless a court finds that the restricted speech caused or will cause harm to a child’s welfare.

The family judge ordered:

“The parties shall not encourage the Child to refer to anyone other than the parties as Mother, Mom, Father, Dad, [et cetera.] In the event the Child refers to a party’s spouse or significant other in such a way, that party shall correct the Child.”

The court restricted the Child’s use of the terms “Mom,” “Dad,” to the Child’s biological parents. Accordingly, the order was a content-based restriction subject to strict scrutiny.

Father testified that the Child is calling Stepfather “Dad” or “Daddy,” a term that applied only to Father during the Child’s first five years of life – years during which Father testified he was the Child’s “stay-at-home Dad.”

Mother testified that it is “unreasonable” to expect the Child, at age 8, to call Stepfather by a name different from what her two younger half-siblings will use in the future.

The court held it was unreasonable for Mother to expect that Father share the title “Dad” with Stepfather, in light of evidence that Mother has acted to diminish Father’s role in the Child’s life, such as leaving him in the dark regarding a baptism.

The family judge’s imposing a restriction on the Child’s speech, did so in an attempt to further the state interest in protecting the Child’s mental and psychological well-being by maintaining and strengthening the strained relationship between Child and Father.

However, the restrictions were not narrowly tailored to further the state’s compelling interest without a finding by that the use of the term “Dad” or “Daddy” to refer to Stepfather caused harm or will cause harm to the Child.

Indeed, the text of the trial court’s order suggests that the trial court was concerned that the parents’ mutual ill-will and mistrust may have cultivated unhealthy bonds between the parents and the Child, not that the terms the Child used to refer to her parents and stepparents were central to that process.

Without a finding that the Child’s use of the terms “Dad” and “Daddy” to refer to Stepfather posed a tangible risk of harm to the Child, the appellate court was constrained to vacate the content-based restriction.

The opinion is here.

Pet Custody in Tennessee

Posted by Ron Kauffman on

The issue of pet custody is increasingly becoming big news in many jurisdictions as people’s views of their relationships with pets change. A new proposed Tennessee pet custody bill could bring a pet custody and visitation law to the Smokey Mountains.

pet custody tennesee

Pet Custody at its Best

Generally, when couples divorce, current law has always been that pets are treated pretty much the same as ownership of your living room couch would be – or any other piece of property for that matter. There has traditionally never been a thing called pet visitation at common law.

Two Tennessee state lawmakers are now trying to change the traditional way of dealing with pets in divorce with some new legislation. According to reports, the new bill would allow a family law judge to determine pet custody based on what’s in the best interest for the wellbeing of a pet.

Tennessee HB467/SB568 essentially states that the family law court may provide for the ownership or joint ownership of any pet or companion animal owned by the parties, taking into consideration the well-being of the animal. If passed in its current state, the act would take effect July 1, 2023.

Tennessee Representative, Caleb Hemmer, a Nashville Democrat, said he tackled the issue because custody of a pet can be a deeply emotional issue.

“For many people, pets are like family members and even cared for like children. It only makes sense for courts to treat them the same way.”

Politicians began to research passing a bill after they personally lived through the painful experience of losing custody of the family dog during a divorce.

Florida Pet Custody

I’ve written on the development of pet custody cases and statutes around the world before. Pet custody cases are becoming more and more prevalent internationally because lawmakers and advocacy groups are promoting the notion that the legal system should act in the best interests of animals. This is due, in part, because pet ownership has increased.

Pets are becoming a recognized part of the family. Some would argue they’re a modern couple’s new kids. About 15 years ago, states began to allow people to leave their estates to care for their pets. Recently, courts have gone so far as to award shared custody, visitation and even alimony payments to pet owners.

Florida doesn’t have pet custody or visitation laws. Florida courts are already overwhelmed with the supervision of custody, visitation, and support matters related to the protection of children.

Not all states have ruled out a visitation schedule for dogs like Florida. For instance, while Texas also views dogs as personal property, in one case a Texas court authorized visitation. A new California law changed the way pet custody is handled in divorce cases. The law gives judges the power to consider the care and the best interest of the pet when making decisions.

According to a recent survey of the American Academy of Matrimonial Lawyers, about 30% of attorneys have seen a decrease over the past three years in pet custody cases in front of a judge.

Over the last decade, the question of pet custody has become more prevalent, particularly when it involves a two-income couple with no children who shared responsibility for, and are both attached to, the pet.

Smiling in the Smokey Mountains

The issue of pet custody is gaining traction around the U.S. and the world as pet ownership climbs. The COVID pandemic help to further propel pet ownership and this issue. A new Forbes Advisor survey found that an overwhelming majority of pet owners – about 78 percent – acquired their pets during the pandemic.

Already about five states and Washington D.C. have passed similar pet custody laws. The current bill proposal by Tennessee politicians Hemmer and Yarbro applies to any pet owned by a married couple.

The American Academy of Matrimonial Lawyers has repeatedly reported that there’s been an ever increase in arguments over pet custody in recent years. Additionally, the drafters of the Tennessee bill want more jurisdictions to pass pet custody laws.

The Axios Nashville article is here.