Tag: custody and timesharing

Pet Custody Gets Approval in Spain

A new ruling out of a family court in Madrid, Spain gives the judicial stamp of approval to pet custody. After a recently separated Spanish couple went to court to determine which “parent” the family’s pet dog should live with, the judge made a ruling which may signal that pet custody is in our future.

Pet Custody

El Perro Caliente

After a hotly contested custody trial, a Madrid court this month awarded joint custody of an estranged couple’s pet border collie named “Panda.” The separated couple, who filed this action, apparently only went to trial on the issue of determining who the dog should live with.

The Spanish court, in its recent ruling, and after verifying an “affective bond” between the animal and the plaintiff, ruled on both the issue of parental responsibility and a timesharing schedule (physical and legal custody) of the pet dog!

The Spanish court ruled that both parties were “jointly responsible” and “co-caretakers” of the pet dog. The judge also ruled Panda will live in both parties’ homes on a monthly rotating timesharing schedule:
Shared ownership of Panda for each of parties, and for other people responsible for pets shows that the affection a person may have over their pet is similar to the same affection from other people.

“The mere formal ownership of the animal, whether as owner or adopter, cannot prevail over the affection of the applicant.”

The Court’s resolution of this pet custody case represents a further step towards the “de-objectification” of animals, on the path marked by the imminent reform of the Civil Code. Spain is currently drafting new legislation so that animals are no longer considered objects and are legally recognized as living beings, according to the Spanish article translated in Google Translate.

Florida Pet Custody

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

Pets are becoming a recognized part of the family. 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.
Accordingly, Florida courts have not or cannot undertake the same responsibility as to animals.

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.

Pet custody cases are becoming more and more prevalent around the country. That is because state lawmakers and advocacy groups are promoting the notion that the legal system should act in the best interests of animals.

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.
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, she said.

Loco por Animales

The lawyer for the plaintiff, Lola García, from the Law & Animals law firm, explained that in her arguments for joint custody she resorted to the European Convention and not exclusively the Spanish Civil Code because the amendment on pet custody had not been made effective.

The plaintiff relied on the 1987 European Convention for the Protection of Pet Animals, which was ratified by Spain in 2017. The Convention seeks to promote the welfare of pet animals and ensure minimum standards for their treatment and protection.

Using 1987 European Convention allowed the plaintiff to declare herself as “co-responsible” and a “co-carer” of Panda, instead of a “co-owner.”

The language was considered important because it meant not treating the dog as chattel, and may open the door for lawyers to use the Convention instead of the Civil Code.

An earlier case in 2019, in Spain’s Court of First Instance number 9 of Valladolid, declared “co-ownership” of ‘Cachas” the dog after the parties’ separation, and allowed each of the owners a timesharing schedule of alternating six-month terms each year.

That ruling was seen as “a great advance” in the public’s awareness of the importance of pets, but pets were still referred to as property. The ruling also mentions different judgments that are based on similar cases and alludes to a judicial decision from 20 years ago which provided an approach that can be described as ahead of its time.

In the US and UK, pets are legally seen as inanimate objects akin to cars, houses or other personal items. Custody cases come down to determining who the sole owner is. In Australia, there is no legislation as to how to courts should navigate living arrangements for pets after a breakup.

France changed its law in 2014 so that pets were considered “living and feeling beings” rather than “movable goods”. The new status meant that couples could fight for shared custody in divorce cases.

The article from Spain’s RTVE is here.

2021 Alimony Reform and Equal Timesharing

Two new bills which reform alimony and create an equal timesharing presumption were introduced into the Florida House and Senate after the Legislature opened this week. This is big news for all parents and spouses as the proposals make sweeping changes.

Alimony Reform

New Senate Alimony Bill

Sen. Joe Gruters and Rep. Anthony Rodriguez filed wide-ranging bills (SB 1922 and HB 1559) on Monday that would include eliminating the award of what is known as “permanent” alimony. Lawmakers have repeatedly considered alimony overhauls in recent years, with proposals dying during the 2020 session.

Former Gov. Rick Scott, who is now a U.S. senator, twice vetoed alimony proposals. In his second veto in 2016, Scott blamed an even more-contentious child custody component included in that year’s version of the bill. In 2013, Scott vetoed a different version, objecting that alimony changes could have applied retroactively.

Florida Alimony

In Florida, alimony is awarded to a spouse when there is a need for it, and the other spouse has the ability to pay for alimony.

Currently, Permanent Alimony is awarded to provide for your needs and necessities of life a they were established during your marriage, if you lack the financial ability to meet your needs and necessities of life following a divorce

As I have written before, alimony and equal timesharing reform bill have been filed for many years. Alimony can take various forms. Alimony can be awarded to “bridge the gap” between married and single life. This is usually a short-term form of alimony, and in fact, can’t exceed two years.

Alimony can be rehabilitative – to help a party in establishing the capacity for self-support by developing skills or credentials; or acquiring education, training, or work experience.

Durational Alimony is awarded when permanent periodic alimony is inappropriate. The purpose of durational alimony is to provide you with economic assistance for a time after a short or moderate term marriage, or even long marriages, if there is no ongoing need for support on a permanent basis.

Florida Time-Sharing

Florida has a public policy that each child has frequent and continuing contact with both parents after the parents separate or divorce and tries to encourage parents to share the rights and responsibilities, and joys, of childrearing.

However, there is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying a parenting plan of the child.

Instead, Florida law considers the best interest of the child, taking into account several factors such as the capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required. Other factors look to the geographic viability of any parenting plan, the moral fitness and mental and physical health of the parents.

Other factors focus on the child, such as the home, school, and community record of the child, or the reasonable preference of the child, if the child is of sufficient intelligence, understanding, and experience to express a preference, and the developmental stages and needs of the child.

New Senate Timesharing Bill

The new Senate bill would dramatically alter the law. Although the bill purports to make the best interest of the child the test for determining all matters relating to parenting and time-sharing, the proposed bill would make it Florida law to presume that equal time-sharing with a minor child by both parents is in the best interest of the child.

Unless otherwise agreed to by the parties, there is a presumption that equal time-sharing is in the best interests of a minor child common to both parties. This subparagraph applies to all actions filed on or after July 1, 2021.

The Senate Bill is here.

 

Upcoming Speaking Engagement on Parenting Plans

I look forward to speaking about child custody and timesharing parenting plans on December 4th at the Dade County Bar Association & Dade Legal Aid/Put Something Back “Nuts and Bolts of Family Law” Seminar. I will be speaking along with my colleagues, Hon. Samantha Ruiz Cohen, Michelle M. Gervais, Robert C. Josefsberg, Amber Kornreich, Paul R. Lipton and Jacqueline M. Valdespino.

Child Custody Parenting Plans

Dade Legal Aid/Put Something Back

Dade Legal Aid provides direct civil legal services for low-income residents of Miami-Dade County. Since 1949, we have been passionately committed to providing “Access to Justice” to those in need of legal representation, including low-income individuals and families impacted by the current health crisis.

Dade Legal Aid provides life-changing and often life-saving services in the areas of Family Law, Domestic Violence, Guardianship, Child & Teen Advocacy, Human Sex Trafficking, Guardian ad Litem and other areas of law.

Annually, the agency serves over 5,000 clients positively impacting the lives of over 10,000 residents utilizing a strategic mix of experienced staff attorneys, pro bono attorneys, law firm partnerships, law school stakeholders and dozens of collaborations with diverse organizations and groups with the aim of assisting vulnerable populations and families living in poverty

Child Custody and Timesharing

I will be discussing parenting plans, a topic I’ve written and spoken about before. Generally, a parenting plan is a document created by lawyers or the court to govern the relationship between parents relating to decisions that must be made regarding their minor children.

Parenting plans must contain a time-sharing schedule for the parents and children too. The issues concerning the minor children should also be included, and consist of issues such as the children’s education, their health care, and physical, social, and emotional well-being.

When creating parenting plans, it is important to consider all of the circumstances between the parents, including the history of their relationship, whether there are any issues about domestic violence, and many other factors must be taken into consideration.

A parenting plan has to be either developed and agreed to by the parents and approved by a court; or in the alternative, a parenting plan must be established by the court – with or without the use of a court-ordered parenting plan recommendation – when the parents cannot agree to a parenting plan, or the parents agreed to a plan, but the court refuses to approve the parents’ plan.

Register here.

 

Swinging into Child Custody Co-parenting

Four years after Spiderman star Tobey Maguire separated from his estranged Wife Jennifer Meyer, the couple is swinging into a new life of child custody and co-parenting in a way many divorcing couples should stick to.

Spiderman coparenting

Spiderman Meets Divorce Court

The two are officially ending their marriage. Four years after splitting, Meyer filed for divorce from the actor. Jennifer Meyer announced their separation, but the issues that led to the end of their nine-year marriage are not new.

“They’ve been living separate lives for a while. They have completely different interests and haven’t seemed to be connecting.”

Part of the problem seems to be a personality clash. “He’s extremely private and prefers to stay home, and she’s very social and has tons of girlfriends,” the source explains.

“They haven’t been happy together for a long time. But they are great parents, and they love their children.” A family friend echoed the couple’s devotion to their children. “It’s a marriage that’s ending, but a bond and a family as strong as any I know. They’re remarkable people. And very supportive of each other.”

Florida Co-Parenting

The question about an award of custody of children frequently comes up and is a matter I’ve written about before. Many people are surprised to learn that the term “custody” is no longer recognized in Florida.

Florida replaced the “custody” term for the “parenting plan” concept in order to avoid labeling parents as “visiting parent” or “primary parent” in the hopes of making child custody issues less controversial, and encourage parents to co-parent more effectively.

Under Florida’s parenting plan concept, both parents enjoy shared parental responsibility and a time-sharing schedule. “Shared parental responsibility” means both parents retain full parental rights and responsibilities and have to confer with each other so that major decisions affecting their child are made jointly.

A time-sharing schedule, as the name suggests, is simply a timetable that is included in the parenting plan that specifies the times, including overnights and holidays, that your child spends with each parent.

Florida’s parenting plan concept has changed sole custody into “sole parental responsibility.” The term means that only one parent makes decisions regarding the minor child, as opposed to the shared parental responsibility terms, where both parents make decisions jointly.

Spidey Sense

Maguire, 41, and Meyer, 39 met in early 2003 and were married four years later in an intimate wedding ceremony in Hawaii, witnessed by a small group of family and friends.

At the time Meyer, a jewelry designer, shared her feelings about the big moment, telling USA Today, “Let’s just say this is truly the best time of my life. I’m walking on air. I’m getting married, starting a family and have an amazing company.”

The actor, who has spoken out about having a rocky childhood, revealed that settling down was a big priority in his life.

“Growing up the way I did, I had a very serious ambition to make some money, to have some security and comfort in my life,” he told Parade magazine in 2007.

Maguire has been keeping a low profile in Hollywood since wrapping up Spider-Man 3 — his final outing with the franchise — in 2007, appearing only in a handful of carefully selected projects including 2013’s The Great Gatsby and 2015’s Pawn Sacrifice, his last film to date.

The actor has also been seen hanging with pal Leonardo DiCaprio and girlfriend Nina Agdal, mostly recently on a yacht in Ibiza.

Maguire and Meyer also attended Jennifer Aniston and Justin Theroux’s secret wedding last year (Meyer designed Aniston’s wedding ring), and eventually joined Aniston and Theroux on a group honeymoon trip to Bora Bora that included a slew of other friends.

“They have completely different interests and haven’t seemed to be connecting,” the insider said at the time. “He’s extremely private and prefers to stay home, and she’s very social and has tons of girlfriends.”

“They haven’t been happy together for a long time,” the source continued, “but they are great parents, and they love their children.”

Despite their separation, the duo seems to have remained on friendly terms. The Spider-Man star has shown up to support Meyer in the years since their split. In 2018, Maguire attended the opening of his ex’s jewelry store in Los Angeles and posed for photos with Meyer.

In June, Meyer wished Maguire a happy Father’s Day on Instagram, calling the actor her “best friend.”

“To the best baby daddy. All is can say is no matter what happens in life, to relationships etc…. choose a dad for your kids that you can count on forever. This one right here is my best friend and the greatest dad to our babies. I’m sorry Tobey, I know you hate Instagram, but every once in a while I like to brag to everyone about how special you are ❤️ Happy Father’s Day.”

The People article is here.

 

Your Nanny Could Be Entitled to Custody and Visitation

A married high school teacher in Vermont recently learned that the troubled student she and her husband took in, and who helped with nanny duties, could be entitled to custody and visitation of her child as a ‘de facto’ parent. How did the Vermont Supreme Court just decide the issue?

de facto parent 2

Half Baked Parents

A 5-year old boy is the biological son of a Mother and Father. The Mother is a 41-year old high school teacher who was pregnant with a child. The Plaintiff (Student) was a female high-school student from an abusive household who always relied on the Mother for moral support.

When the Student turned 18, she was kicked out of her own home, was welcomed into the Mother and Father’s home, paying $100 a month for utilities and helped with chores. Two weeks after moving in, the Student left to attend college in northern Vermont and returned on the weekends.

The Student and the Father started a romantic relationship, which turned into a polyamorous sexual relationship involving the Mother: they slept in the same bed and of course, got matching tattoos.

The Mother and Student went to the Mother’s prenatal visits, she was present for the baby’s, J.F., birth, and even cut the umbilical cord. But unbeknownst to the other two, the Mother went to a divorce lawyer.

The Father later found evidence the Mother was having an affair. As retaliation, the Father and Student took the Mother’s phone, her high-heeled shoes – calling them her “whore shoes”— her makeup, and used FBI interrogation methods such as sleep deprivation on the Mother.

After the Mother filed for divorce, the Student sought custody as a de facto parent when the Mother would not allow her to see the baby.

Florida De Facto Parents

I’ve written about various custody issues involving non-biological parents before – in Florida it has typically meant grandparent visitation rights. Often times people who are not married, not adoptive parents, and not biological parents, are involved in raising a child. When relationships sour, the non-parent seeks visitation and timesharing of a child that’s not really theirs.

Florida’s rules regarding visitation and timesharing are governed by statute. And by its explicit provisions, the statute applies only to parents’ visitation rights and does not extend to nonparents.

There are a few Florida cases that have applied the law to hold that nonparents are not entitled to visitation. Because of these cases, non-parents do not have standing to even ask the court for visitation and timesharing.

The role of the de facto parent is very fragile. The Florida Supreme Court, relying on the constitutional right of privacy, has unequivocally reaffirmed adoptive or biological parents’ right to make decisions about their children’s welfare without interference by third parties.

The distinction between “adoptive or biological parents” is critical in Florida. The law is clear: those who claim parentage on some basis other than biology or legal status do not have the same rights, including the right to visitation, as the biological or legal parents.

A Chunky Monkey Decision

Back in Vermont, after extensive hearings, the family court judge refused to find the Student was a de facto parent, and the Student appealed, ending up in the Vermont Supreme Court.

The high court upheld the family court judge, who found that the Student failed to prove her role in the family was more than that of a nanny. Simply taking care of the baby when mother was at work, not on weekends, vacations, or during the evenings or overnight was not enough.

The court also rejected the Student’s argument that she was a de facto parent because she didn’t hold out J.F. as her own child. A few Facebook posts over the course of four years was not considered enough.

Finally, the court concluded that continuing the relationship was not in J.F’s best interests because of the controlling nature of the Father’s and Student’s relationship with the Mother. Getting the Mother suspended, taking away her shoes and the sleep deprivation techniques, all had a negative impact on the child – causing difficulty sleeping, constipation, and bedwetting.

Additionally, the court was concerned that the Student having report the Mother to the school and getting her suspended from her job, meant that a continuation of the Student’s relationship with the child could result in continuing control over the Mother, and that control was not in the child’s best interests.

The Vermont Supreme Court decision from Reason.com is here.

Grandparent Custody Goes to Federal Court

A rare grandparent custody and timesharing case ends up in a federal court after the child in question filed a temporary restraining order to prevent county child services from sending him to Florida to live with a father he claims he’s never met.

Grandparent Custody

The Ruckus in Columbus

“John Doe” is a thirteen-year-old boy in the temporary custody of Franklin County Children Services. He had been living with his mother in Ohio, but Children Services suspected that he was being abused or neglected. So, Children Services filed a case in Ohio state court to have Doe removed from his mother’s home. The court ordered Doe removed, and it is now presiding over the resulting custody dispute.

During the proceedings, the state court gave Children Services custody of Doe. Children Services then placed him with his maternal grandmother, who he has had a relationship with for much of his life and who also lives in central Ohio. A Guardian Ad Litem, who filed a report, recommend placement with his grandmother.

The child claims he has had no contact with his father from the time he has a baby until after the case was filed, that his father has a criminal record and has two family members who died from drug overdoses. He has expressed fear of his safety if made to live with his father, as well as fear of traveling to Florida at this time during the COVID-19 pandemic, and wishes to remain with his grandmother.

However, Child Services decided the child should be put on a plane to live permanently with his father in Florida, for reasons unknown to him, with whom, as best he can recall, he has not had a relationship for his entire life.

The child then filed a complaint in the U.S. District Court, and sought a temporary restraining order (a TRO) claiming he was denied procedural due process and first amendment retaliation claims. The trial court granted his motion.

Children Services appealed to the 6th Circuit Court of Appeals and moved to stay the injunction pending the appeal.

Florida Grandparent Visitation

I have written extensively on grandparent visitation in Florida. In early common law, there was never a right to visitation by non-parents, and Florida has clung to that tradition. That is ironic, as a lot of elderly voters reside in Florida, and politicians have been trying to create visitation rights to grandparent voters here.

Beginning in 1978, the Florida legislature started making changes to the Florida Statutes that granted enforceable rights to visit their grandchildren.

The Florida Supreme Court built a massive wall blocking Florida grandparent visitation rights, explaining that parenting is protected by the right to privacy, a fundamental right, and any intrusion upon that right must be justified by a compelling state interest. In Florida, that compelling state interest was harm to the child:

“[W]e hold that the [s]tate may not intrude upon the parents’ fundamental right to raise their children except in cases where the child is threatened with harm.”

Recently, the Florida Supreme Court held that under the federal Parental Kidnapping Prevention Act any custody determination or visitation determination – including grandparent rights  – are protected and enforceable under the PKPA. And, to the extent that the PKPA conflicts with Florida law, the PKPA controls under the supremacy clause of the U.S. Constitution because it is a federal law.

The Buckeye Way

The Sixth Circuit rejected Children Services’ arguments that the district court should have abstained in favor of state proceedings:

Children Services filed the case to remove Doe from a potentially abusive home, and “the temporary removal of a child in a child-abuse context is … in aid of and closely related to criminal statutes.”

But removal proceedings are not at all “akin to criminal prosecution” as far as the child is concerned. And here, it is the child who has filed the federal lawsuit. That difference matters, because the Court has described proceedings in this second category as those that are “characteristically initiated to sanction the federal plaintiff.”

That does not describe this case, where the federal plaintiff is not an abusive parent, but a child. In the absence of full and thorough briefing, we will not broadly construe the Younger categories to apply to this different situation—especially given the Court’s instruction that Younger “extends to the three ‘exceptional circumstances’ [it has identified], but no further.”

Another argument by the agency was that under the Rooker-Feldman doctrine federal district courts lack jurisdiction to review state court judgments, but the court held it has “no application to judicial review of executive action, including determinations made by a state administrative agency.”

The court found that the child was not challenging a state court judgment; he was challenging the decision of Children Services, an agency of Franklin County, Ohio.

The court also rejected Children Services’ argument that it should get a stay because it’s likely to prevail on the merits of its appeal:

The states’ interest in resolving child-custody disputes is exceptionally strong, and federal court involvement in custody proceedings will almost always be inappropriate.

Finally, the court cautioned all district courts against entangling themselves in this area of traditional state concern.

The 6th Cir. Opinion is here.