Tag: Child custody

Three Parent Custody Cases

A Long Island couple, and a neighbor with whom they had a threesome, have been granted custody of their 10-year-old son to three parents in a groundbreaking ruling.

New York residents Dawn and Michael Marano, married in 1994. They had a conventional marriage, until they befriended downstairs neighbor Audria Garcia in 2001.

Garcia had been living with her boyfriend, but when they split up, she moved upstairs and “began to engage in intimate relations” with the Maranos.

No one told these three people to create this unique relationship Suffolk County Supreme Court Judge H. Patrick Leis III wrote in the ruling for the first-of-its-kind case in New York. It was agreed, before a child was conceived, that [the Maranos and Garcia] would all raise the child together as parents.

The threesome was one big happy family for 18 months, until Garcia and Dawn Marano decided to become a twosome and left Michael. They moved out and into a new home nearby in 2008.

Then Michael Marano sued Garcia for custody of their son. Dawn Marano then sued her husband for divorce. Michael Marano and Garcia agreed to joint custody, but Dawn felt left out.

As neither a biological nor adoptive mom to the boy, Garcia had no automatic legal right to custody. Although she still lives with the mother, Dawn Marano.

Dawn Marano then filed another suit “to secure custody rights because she fears that without court-ordered visitation and shared custody, her ability to remain in the child’s life would be dependent on obtaining the consent of either Audria or [Michael],” Judge Leis explained.

In awarding Dawn Marano shared custody, Leis cited a ruling by New York’s highest court that allowed non-biological or adoptive parents to seek custody of a child if they had a prior relationship with that child.

While the two women are “absolutely thrilled” with the ruling, the New York Post reports that the father, Michael Marano, intends to appeal.

I’ve written about custody issues in Florida before. In one Florida case a man reached a verbal agreement about donating sperm for his two same-sex female neighbors, who would raise their child together.

But shortly before the baby was born, the Father decided he wanted to be considered a parent and not a sperm donor. The women disagreed. Under Florida law, sperm donors have no legal rights to children.

Under the Florida judge’s decision, the two women will have sole parental rights, although the Father will be allowed to visit the child. He will not be expected to provide child support.

The New York Post article is here.

Scarlett Johansson’s Divorce & Interstate Custody

Scarlett Johansson filed for divorce in New York this week, and is asking for custody of their daughter. Her husband, Romain Dauriac, also wants custody, but lives in France. This creates an interstate custody issue.

For many reasons, a new job, a new love interest, family, it is common for parents to move after separating. If they have children, they want to bring them too. If they want to live out of state or the country, that makes it an interstate custody case.

The Interstate Custody Problem

According to US Weekly, Scarlett’s husband Romain plans to fight for custody of their daughter, which could set up an ugly court battle. He’s French and his attorney states his client plans to move back to France:

He would like to move to France with his daughter and Ms. Johansson does a lot of traveling, it will be an interesting process.

I’ve written about interstate custody issues, and recently spoke on the subject. So, what laws govern, and where could Romain file for divorce and custody?

Interstate Custody Laws

Several laws govern where to file your interstate custody case. In a recent New York case, an appellate court had to reconcile two laws governing interstate custody: the UCCJEA and Hague Convention.

In the New York case, a husband, wife and child moved from Canada to New York. After about five months in New York, the mother took the child back to Canada without the father’s consent and she promptly filed for custody there.

The father filed his own custody action in New York, applied for the return of the child under the Hague Convention, and instituted a Hague Convention case in Canada.

The Canadian court ruled that the child had been “habitually resident” in New York on the day that she was taken back to Canada, and ordered that the mother return the child to New York.

The mother brought the child back to New York but asked New York to dismiss the New York case because New York was not the “home state” of the child under the UCCJEA.

The “home state” is generally defined under the UCCJEA as “the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding.

The mother claimed that the child had been in New York for only five months before being taken back to Canada.

The New York court determined that the Mother’s stay in Canada was only a “period of temporary absence”, and added it to the prior five months to constitute the required six-month period.

Additionally, the New York court noted that even if the six-month rule had not been satisfied, New York had initial custody jurisdiction because Canada declined the case.

The US Magazine article on the Scarlett Johansson divorce can be found here.

Shaming Your Child on Facebook

Should you use Facebook to publicly shame your child in a child custody dispute? Seems like an obvious question, but one a Louisiana appellate court recently answered.

According to the opinion of the Louisiana First Circuit Court of Appeal, a mother complained when a trial judge failed to stop the father and his new wife from posting embarrassing photos about the minor child on social media.

The Mother sought the injunction based on an incident wherein Jason Tinsley, as a means of punishment, forced the minor child to post a picture of herself on her Instagram account holding a sign that said:

“I WILL BE A LEADER, NOT A LIAR!!”

In addition, Jason Tinsley and his wife posted the same photo on their Instagram and Facebook pages, with Jason Tinsley making this photo his profile picture on his Facebook page.

The mother contended that this form of discipline was inappropriate, humiliating, and demeaning, and they should be prohibited from posting such pictures on social media accounts.

The trial court denied her request for the injunction. The appeals court affirmed the trial judge’s decision. The court found that there was no irreparable injury, loss, or damage that could result to Nicole Tinsley or the minor child.

I’ve written about child custody issues before. In Florida, all matters relating to parenting and time-sharing of each minor child of the parties is made in accordance with the best interests of the child.

While the Louisiana appellate court affirmed, it did find that the father’s use of social media – particularly his forced takeover of and publishing of content on a minor child’s social media account – was clearly improper and inappropriate.

Jason Tinsley staged an intentionally embarrassing picture of the minor child, he then posted the embarrassing picture of the minor child on his social media accounts, and he forced the minor child to post (or publish) the embarrassing picture of herself on her own social media account, all of which was for the sole purpose of punishing the child by notifying the child’s family and friends (and Jason Tinsley’s family and friends) of the child’s transgression – an apparent lie about a boy being at a public park while the child was at the same park with a friend.

The court held:

It is hard to imagine a more improper or inappropriate use of social media by a parent than to use it punitively to publicly humiliate a minor child by requiring a child to publish a photograph of herself wearing the modem day equivalent of a scarlet letter to thereby notify the public of her wrong.

A discussion and link to the decision is available here.

Spanking & Custody: Can you lose your children for spanking?

On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Thursday, May 29, 2014.

‘Spare the rod spoil the child’ sayeth Proverbs. This week there’s a debate in France to ban spanking. Can you spank without fear of losing child custody or it impacting time-sharing in Florida?

As Radio France Internationale reports, In France, lawmakers are behind a proposed amendment to a wide-ranging family law which is being debated in the French parliament.

One measure of the proposed bill states:

legal guardians cannot use corporal punishment or physical violence against children.

Spanking in Florida

In Florida you’re not supposed to hit your children. Florida has strong laws for the protection against domestic violence.

Domestic violence includes any assault, battery or any other offense resulting in physical injury of a family member by another family member.

However, parents have to discipline their children, and as the good book says, he who loves his child is careful to discipline him. In Florida, parents have a right to discipline their child in a reasonable manner.

A parent’s right to administer reasonable corporal punishment to discipline a child is not a crime when it does not result in harm to the child.

Harm, by the way, does not mean just bruises or welts for instance. Harm also means that the discipline is likely to result in physical injury, mental injury, or emotional injury. Even if you don’t physically harm a child, your actions could be criminal.

Florida’s parental privilege to use corporal discipline does not give absolute immunity either. Your run-of-the-mill spanking may be protected from charges of child abuse, but punching your child, pushing him onto the floor and kicking him is not.

So, is it open season on kids? Hardly. Guardians and judges are analyzing you, and you don’t want to start off your custody case explaining why you beat your kids. The excuse: “this fellow does what the bible says” will not score a lot of points in a courtroom.

Besides, some studies suggest that time-outs work just as well as spanking for immediate punishment, and that for long-term effectiveness, spanking decreases compliance. Worse, spanking may increase child aggression.

While there are some limited privileges for discipline, there are major risks to your custody case, your criminal defense case, and most importantly, to your children.

The front page of the Miami Herald is usually filled with horrible stories each week on child abuse. As a society, we are constantly searching for ways to protect children from abuse. Besides, the results of spanking may be counterproductive.

The RFI report on spanking in France can be read here.

A Movie Review!

On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Sunday, September 30, 2012.

As a matrimonial attorney, I don’t much care for movies about child custody cases. I’d seen, but didn’t like, Kramer v. Kramer, Falling Down, and Intolerable Cruelty. I just don’t think custody battles make for good film. Talk to Strangers proved me wrong. You can see the trailer here.

Clients are often surprised to learn that divorce attorneys and judges don’t usually see the children in the divorce process. This means that we sometimes become immune to its impact on children. Talk to Strangers corrects this problem. It looks and feels realistic, shows you the custody evaluation process from the children’s perspective, and comes with a guide for clients. It’s a short, dramatic mockumentary of the custody process meant for its teaching value. Anyone who is involved in the process will learn something, but the movie seems to be aimed primarily at clients.

This is a good movie to watch. First of all, it’s short, coming in at around 25 minutes. Its film locations, a suburban Connecticut home and cold courthouse, make the movie very convincing. The acting is good and professional, especially the brother and older sister, who do a great job portraying the deteriorating relationship with their parents and each other. All the performances are good. In a closing scene, the parents are shown a video of themselves confidently predicting how great their children will do at the end of the process because they are going to work so hard at it. You’ll want to cry.

Tell your clients who have any interest in fighting a tough custody battle to buy this short movie first (it’s probably the cheapest way to settle a custody battle). Oh, and tell them to bring tissues.

Talk to Strangers

On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, September 21, 2012.

child custody cases are emotionally draining, and high conflict child custody cases can have a huge impact on children involved. How to lessen the impact of child custody cases on children has been a problem which lawyers, judges and every other professional in the process have long sought.

A Connecticut family lawyer, Deb Grover, who was serving as Chair of the Connecticut Bar Association’s Family Law Section had the idea to create a film to lessen the impact to children. The film is called Talk to Strangers, and was funded by the Connecticut Bar Association, and written by family law specialist Larry Sarezky and produced by Sarezky with Deborah Grover.

From the website:

Talk to Strangers is a fictional portrayal of what happens when parents divorce, and the custody of the children is in dispute. The film family, particularly the children, trudge through the intrusive and lengthy process that leads to a determination of custody. We see them in interviews with family court personnel and observe the tense and painful family interactions that take place.

If you take a minute to watch the trailer for the movie, you quickly see why this film is very different from other videos available on the subject, as it appeals to you on a strong emotional level. The trailer can be viewed here. I just ordered it, and look forward to viewing it, but here’s what others are saying:

“A must-see for parents and counsel involved in this terrible process known as custody litigation.”

– Arthur Balbirer, Esq. – past president American Academy of Matrimonial Lawyers

“…Talk to Strangers, both the film and the pocket guide, are wonderful. The voices of the children speak louder than any educational program…”

– Robin M. Deutsch, Ph.D – Children & the Law Program, Dept. of Psychiatry Massachusetts General Hospital

“This wonderful film… will provide insight and great assistance. Watch it and learn!”

– Alan Dershowitz – Harvard University Professor of Law

A Presumption of Equal Timesharing?

On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Friday, September 14, 2012.

Increasingly, clients are demanding shared custody and 50-50 child custody, meaning they want to divide the time with their children and other parent equally and have equal decision making rights. I’m also hearing calls for legislation to make joint custody and equal time sharing mandatory. The British government recently announced it is seeking to amend Section 1 of the Children Act 1989 to introduce a legal presumption of ‘shared parenting’.

When parents get along reasonably well, and live close by, an equal timesharing schedule may be in the children’s best interests. It can: foster Florida’s policy of frequent contact with parents after divorce, reduce custody litigation, spare thousands of children from being dragged into a battle between their parents, and discourage custody cases which have more to do with how much child support gets paid than timesharing.

Equal timesharing can be done in different ways: Week on/week off, 5-5-2-2 (in which a parent has the child for two weeknights then the child goes to the other parent for two weeknights, then the child goes back to the first parent for the three day weekend and the first two assigned weeknights which equals five nights.) and more. I can’t list all of the schedules possible, but an equal timesharing schedule is only limited by the parties’ willingness to be creative.

The rub of course, is creating a timesharing schedule which maximizes parent/child time, and minimizes transition troubles. While a 50/50 timesharing schedule may be desired, geographic distance, school hours, extra-curricular activities, and work schedules make equal timesharing impractical. In those cases, a more traditional timesharing schedule may be desired, and any shortfall in a parent’s timesharing can be made up during long school breaks, like Christmas and summer.

In order for an equal timesharing schedule to succeed though, the parents have to be flexible, and put the interests of the children first. This is easier said than done. Inevitably, school and extra-curricular activities – or a parent’s work commitment – are going to require the timesharing schedule to be adjusted. If parents are inflexible and unwilling to cooperate with each other, 50% timesharing can have a 0% chance.

Do I Need Divorce Therapy?

On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Saturday, July 28, 2012.

Negotiating child custody, support, and the division of assets is strongly tied to emotions, and if your head is not in the game – because you are still overcome by swirling emotions – your attempts at settlement may fail. I see this happen frequently: a client, or their spouse, cannot make a rational decision because their anger, sadness or suspicion is too much to overcome. When that happens, the only alternative is to go to court.

You may have heard that therapy can help couples save a marriage. But, did you know more and more people are relying on therapists to help guide them through the grueling process of a divorce? I suggest to clients early on in my representation to seek out a good therapist to help them through the divorce process. They can help you overcome your emotions, as well as create timesharing schedules and more.

I remember reading about Elana Katz, the director of the Family and Divorce Mediation Program at the Ackerman Institute for the Family, in a New York Times article.

We used mediation, so we did not go through the adversarial nightmare and did a lot that set up a structure that was going to make us both highly involved parents. There was not going to be winner-take-all.

Katz discussed how therapy helped her through her own divorce. Let’s face it, if professionals in the business know to hire a good therapist, shouldn’t you? It is important for couples to find post-divorce parenting roles and be able to predict finances. Having a professional therapist go through each stage of the process carefully can help you develop new relationships, and understand future goals.

Katie Homes & Tom Cruise: Can Court’s Choose a Child’s Religion?

On behalf of Ronald H. Kauffman, P.A. posted in Child Support on Wednesday, July 18, 2012.

Child custody cases always raise interesting issues. One of the questions in the Katie Holmes and Tom Cruise divorce is what religion will the child be raised in after the divorce. Tom Cruise is a Scientologist, and Katie Holmes is reportedly a Catholic. TomKat are not alone, about 27% of Americans were in interfaith marriages according to the Religious Landscape Survey by the Pew Forum on Religion & Public Life.

Happily for them – but not so much for the media – Katie Holmes and Tom Cruise have reached a settlement in their divorce. But, when divorcing parents can’t agree about religion, can it be a factor in a custody case?

Whenever a court decides custody, the sine qua non is the best interests of the child. But, deciding the religious upbringing of a child puts the court in a tough position. There is nothing in our custody statute allowing a court to consider religion as a factor in custody, and a court’s choosing one parent’s religious beliefs over another’s, probably violates the Constitution. So, unless there is actual harm being done to the child by the religious upbringing, it would seem that deciding the child’s faith is out of bounds for a judge.

Ironically, that may not be the rule all over Florida. Different appellate courts in Florida have slightly different takes on the issue, and the question of whether a trial court can consider a parent’s religious beliefs as a factor in determining custody has been allowed. For this reason, it is best to speak to an attorney experienced in child custody matters.

In Child Custody Cases, Stay-At-Home Dads Are Here to Stay

On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Thursday, July 12, 2012.

Parenting Plans, and specifically timesharing, is increasingly more complex as parenting roles reverse. Time magazine reports that the proportion of stay-at-home dads has doubled in the past decade, and not because fathers got laid off and had nothing better to do:

“The percentage of stay-at-home fellas has doubled in the past decade, though it’s still tiny: just 3.4% of stay-at-home parents are fathers. But man, are those guys happy. Perhaps the joy they take in doling out Cheerios and doing loads of baby laundry is merely additional evidence of the inordinate pleasure that men take in parenting, a phenomenon discussed on Thursday on Healthland.”

“It’s clear to us that men strongly identify with this as a role,” says Brad Harrington, executive director of the Boston College Center for Work and Family and lead author of the stay-at-home dads report. “They don’t have a feeling of ambivalence of, What am I doing, I’m a man. There is no sense of angst. These guys strongly identified with being a SAHD. They are proud of it.”