Tag: divorce and custody

Divorce Waiting Periods

With quarantines loosening up around the state, there has been a constant stream of reports of couples filing for divorce. What if, after weeks in quarantine, you discovered you had to wait two years to divorce? Citizens of Pennsylvania are in for a surprise when their quarantine ends, as the governor has changed their waiting period.

PA Divorce 2

It’s Always Sunny in Philadelphia

In Harrisburg, Pennsylvania Governor Tom Wolf signed a new state law that reduced the divorce waiting period time after a no-fault divorce from two years to one.

Law 102, which will enter into force by 60 days, reduces the waiting period for a one-way divorce without errors from two years to one.

Marriage in Pennsylvania is a traditional divorce and two types of divorce without errors: mutual consent and a two-year separation. Separation simply means that you and your spouse live separately and individually, either under one roof or otherwise.

It is important to note that a one-year divorce waiting period does not necessarily mean that the divorce will be completed in one year. Proponents of the new law believe that it will reduce emotional pressure on families, which seems to worsen the two-year waiting period.

This new rule can save your spouse time, money, and emotional trauma. There is also a delay for people whose spouses disagree with the divorce.

Florida Divorce Waiting Period

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 divorce and your rights before. Helping to expedite your divorce, the no-fault concept in Florida means you no longer have to prove a reason for the divorce. 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.

Florida also has a divorce waiting period of sorts, although it’s not as long as Pennsylvania’s.

In Florida, no final judgment of dissolution of marriage may be entered until at least 20 days have elapsed from the date of filing the original petition for dissolution of marriage.

However, the court, on a showing that injustice would result from this delay, may enter a final judgment of dissolution of marriage at an earlier date.

Either spouse can file for the dissolution of marriage. You must prove that a marriage exists, one party has been a Florida resident for six months immediately preceding the filing of the petition, and the marriage is irretrievably broken.

Back at The Office

From Pittsburgh to Scranton, residents across Pennsylvania will be heading back to the office. A shorter divorce waiting period makes life easier not only for those divorced couples, but also for their children. In a statement, however, Republican Tara Tohil from Lucerne County, who sponsored the bill, said the quickest solution was in everyone’s favor.

“A shorter waiting time helps solve the couple’s financial situation faster and at a lower cost so that they can take care of the well-being of their children,” she said.

Although Law 102 shortens the waiting period after separation from two years to one year, the actual date of separation is still an important factor that can determine many aspects of the divorce process.

The fact is that happy couples will not file for divorce using a simple procedure. After you file for a divorce in Pennsylvania without your fault, you and your spouse will have to wait 90 days from the date you filed the complaint about the divorce before you file 5a and 5b, declaring your consent to the divorce. Therefore, if both parties agree to a divorce and each of them submits an application to the court, the divorce process can be completed much earlier if neither side agrees.

Although an erroneous divorce is always possible, most Pennsylvania couples are perfectly divorced, which means that one spouse is not required to prove that the other has committed an offense. Both spouses must be available and ready to sign legal documents confirming that they agree to a divorce. Thus, the waiting time is only 90 days.

Lehigh Valley’s Morning Call article is here.

 

Divorce Stimulus Checks and More Good Coronavirus News

If you have not already received it (and spent it shopping), your Economic Impact Payment may be on its way. But if you’re separated or going through a divorce, your economic stimulus check may not be as stimulating as you had hoped. As always, there’s also some good coronavirus news.

Divorce Stimulus Checks

A Stimulating Divorce Issue

Since the President signed the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”), the $2 trillion stimulus package to spur the economic recovery, millions of Americans have already received their Economic Impact Payments and are busy shopping.

You may be eligible to receive a payment if you are a U.S. citizen, permanent resident or qualifying resident alien, cannot be claimed as a dependent on someone else’s tax return, have a Social Security number and an adjusted gross income below a certain amount.

Qualifying single adults who have an adjusted gross income of $75,000 or less will receive $1,200. Married couples with no children earning $150,000 or less will receive a total payment of $2,400. Taxpayers filing as head of household will receive full payment if they earned $112,500 or less.

But will the stimulus funds be impacted because you are in a divorce or family law case?

Florida Divorce and Tax

I’ve written about divorce and taxes before. For example, after the new tax code changes became law, it eliminated the alimony deduction. Many people criticized the tax law change in general. For example, the decision to end the alimony deduction received a lot of criticism. Many argued it made divorce worse.

Since the change, we’ve seen that some people are not willing to pay as much in alimony. This reduction in alimony amounts being paid has disproportionately hurt women, who have tended to earn less, and are more likely to be on the receiving end of alimony payments.

Who CARES?

For everyone who has not received it, the stimulus payment checks are something being counted on every day. Fortunately, most people should expect to receive their one-time, $1,200 stimulus payment from the IRS in the next few weeks. However, some people may receive less than they expected.

For example, if you have not filed your 2019 tax return, the IRS will calculate your payment based on the adjusted gross income listed on your 2018 tax return.

Also, if you have a pending divorce case, the payment will be deposited into the bank account that was provided to the IRS on your previous tax return. So, if your last tax return was a joint return prepared with your spouse, you may have to consult an attorney to discuss your options for recovering your payment.

Don’t forget you may also receive an additional $500 stimulus payment for each qualifying child. For anyone who filed jointly with their spouse, and whose custody arrangement has changed since they last filed a tax return, the portion of the check allocated for qualified children may be impacted.

Finally, the rules for child support enforcement are still in effect. Federal law requires child support agencies to collect past due child support from federal tax refunds.

In passing the federal CARES Act, Congress did not exempt the stimulus payment checks from federal offsets for unpaid child support arrears. All or a partial amount of your stimulus check may be intercepted and used to pay unpaid child support.

Good Coronavirus News

As we enter summer, there is good coronavirus news. More and more cities have decided on timetables for reopening certain parks and recreational facilities as part of a phase of returning to normal during the coronavirus pandemic.

  • In Miami, parks, boat ramps, golf courses and other facilities will open with certain restrictions.
  • Face coverings must always be worn unless otherwise noted.
  • Social distancing must be observed, and there can’t be gatherings of 10 or more people.
  • Sadly, swimming pools are not being opened for adult lap swimming. This critical policy misstep – to open swimming pools to adult lap swimming – is a major oversight mayors around the state seem to be making, and will need to be corrected in the future.

The IRS economic impact payments information page is here.

 

Child Custody and the Constitution and Some Good Coronavirus Information

With state and local officials entering shelter in place orders, many parents feel they are being deprived of their constitutional rights to child custody. What are a parent’s constitutional rights during a global emergency? There’s also some good coronavirus information.

Constituion Child Custody

There is no instruction book for a pandemic

Happy belated Easter to everyone . . . except residents of Louisville, Kentucky! The home of Muhammad Ali, the Kentucky Derby, and Kentucky Fried Chicken is in the news. That’s because on Holy Thursday, Louisville’s mayor, Greg Fischer, criminalized the communal celebration of Easter.

Our nation faces a public health emergency caused by the exponential spread of COVID-19. This has led many state and local officials to order increasingly tighter restrictions to promote social distancing and prevent further spread of COVID-19.

Can the state go too far? One federal court thinks so. Last week Louisville’s mayor said, it was “with a heavy heart” that he was banning religious services, even if congregants remain in their cars during the service. A Louisville church then filed an emergency motion in federal court to enjoin the mayor, and won.

The mayor noted that it’s not really practical or safe to accommodate drive-up church services taking place but drive-through liquor stores are A-OK!

Notwithstanding the exemptions of some drive-through places, on Holy Thursday, the Mayor threatened church members and pastors if they hold a drive-in Easter service.

The federal judge, noting American history on religious bigotry, said the pilgrims fled religious persecution, slave owners flogged slaves for attending prayer meetings, mobs drove the Latter-Day Saints to Utah; hatred against Catholics motivated the Blaine Amendment, and Harvard University created a quota system to limit Jewish students.

The judge then found the Mayor’s decision to be stunning and “beyond all reason,” unconstitutional.

Florida Child Custody and the Constitution

Like religions, the constitution protects parental rights too. I have written about the intersection of the constitution and marital law before. The United States Supreme Court has concluded that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.

Florida courts have long recognized this fundamental parental right. The basic proposition is that parents have a legal right to enjoy the custody, fellowship and companionship of their offspring. This is a rule older than the common law itself.

But the parents’ rights are not absolute, as the state has parens patriae authority to ensure that children receive reasonable medical treatment which is necessary for the preservation of life.

So, in Florida the ultimate welfare of the child itself is controlling. While the parent’s interest in maintaining parental ties is essential, the child’s entitlement to an environment free of harm, physical and emotional violence at the hands of parents and caretakers and for medical treatment necessary for the preservation of life.

Because Florida has a compelling interest in protecting all its citizens—especially its youth—against the clear threat of abuse, neglect and death, the constitutional rights can give way.

Kentucky Fried Liberty

Back in Louisville, the court found the city order was not “neutral” between religious and non-religious conduct because it targeted religious worship by prohibiting drive-in church services, but not drive-through liquor stores.

The court noted that the city was pursuing a compelling interest of the highest order through its efforts to contain the current pandemic, but its actions were not even close to being “narrowly tailored to advance that interest.

The court also found that the church was committed to practicing social distancing in accordance with CDC guidelines. Cars will park six feet apart and all congregants will remain in their cars with windows no more than half open for the entirety of the service.” Its pastor and a videographer will be the only people outside cars, and they will be at a distance from the cars.

There is no instruction book for a pandemic. The threat evolves. Experts reevaluate. And government officials make the best calls they can, based on the best information they have. You may not agree with the court’s reasons, but the judge saw his role to explain, to teach, and to persuade.

Good Coronavirus News

Speaking of the constitution, to stem the spread of COVID-19, many cities have passed executive orders requiring people to cover their mouth and nose when going out.

Face masks (surgical or homemade) are now being required in public, such as when going to drive-through liquor stores. But do homemade masks work? The science with different types of masks is not conclusive, but this graphic is good information anyway:

COVID 19

In theory, all masks may prevent some sprays of virus-laden fluids from entering your nose and mouth (inward protection). They are also a reminder not to touch your face. And, if you’re sick, they may help keep some aerosols inside (outward protection), to protect people around you.

The U.S. District Court order is here.

 

Indecent Proposal on Child Custody During the Quarantine, and there’s Good Coronavirus News

For divorced parents, child custody can be challenging. Child exchanges these days risk violating local shelter-in-place orders, or worse, exposing a child to the coronavirus. Displaying a Sixth Sense, actors Bruce Willis and Demi Moore have developed a work-around: they quarantine together! And there’s more good news on the coronavirus.

Child Custody Coronavirs

Pulp Fiction or Armageddon?

A big part of child custody and timesharing challenges is logistical. Many divorced parents do their exchanges at schools, but schools are closed. Florida, like many states, have cities issuing shelter-in-place orders prohibiting all child timesharing exchanges.

Parents are faced with a stark choice this Passover/Easter season: not have any holiday timesharing with the children, or timeshare with a vengeance:

It may have been almost 20 years since Bruce Willis and Demi Moore divorced, but the pair are as happy as 12 Monkeys and clearly still on good terms. Willis and Moore seem unbreakable, as they spend the coronavirus quarantine together with their daughters.

Ok, it is not for every divorced couple. But, Bruce is proving he is not Expendable, and may even be the Last Boy Scout, by hunkering down with his ex-wife during a quarantine. Demi and Bruce’s daughter Tallulah shared a photo on Instagram of her parents wearing goofy, matching, striped pajamas.

The divorced couple have remained on good terms, so much so they’re even pictured hugging each other while giving the camera a thumbs up.

It’s not known if Willis’ current wife Emma Hemming Willis, 41, is staying with the Willis-Moore family, too. Earlier this month, Moore wished her former husband a happy birthday on Instagram, thanking the actor for her three daughters.

Moore and Willis were married from 1987 until their divorce in 2000. They announced their separation in June 1998. The actress opened up about their split in her memoir Inside Out, writing:

It’s a funny thing to say, but I’m very proud of our divorce. I think Bruce was fearful at the beginning that I was going to make our split difficult, and that I would express my anger and whatever baggage that I had from our marriage by obstructing his access to the kids — that I’d turn to all of those ploys divorcing couples use as weapons. But I didn’t, and neither did he.

The Ghost star went on to admit that the couple felt more connected than we did before the divorce.

Florida Child Custody

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

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

Shared parental responsibility, is similar to joint physical and legal custody, and is a relationship in which both parents retain their full parental rights and responsibilities.

Under shared parental responsibility, parents are required to confer with each other and jointly make major decisions affecting the welfare of their child.

In Florida, shared parental responsibility is the preferred relationship between parents when a marriage or a relationship ends. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

But the “best interest of the child” is not an empty slogan. In Florida, how you act during mandatory quarantines and municipal ‘shelter-in-place’ orders can impact a judge’s decision.

In determining the best interest of the child, a court has to consider things like a parent’s facilitating and encouraging parent-child relationships, honoring the time-sharing schedule, and being reasonable when changes are required.

Good Coronavirus News

Some of us are depressed about the coronavirus, but millions of people are rising to the occasion, and there’s a lot of good news mixed in with the bad. The website 80,000 Hours has a listing of some of the positive things we’ve learned:

  • Some countries are turning COVID-19 away at the door, while others are turning the tide of the pandemic. COVID-19 remains mostly controlled in South Korea, Taiwan and Singapore. Taiwan was barely touched.
  • Italy, Spain and countries that engage in national lockdowns are seeing the rate of new cases level off or decline as we hoped and expected.
  • Researchers at the London School of Hygiene and Tropical Medicine just estimated that the reproductive rate of the coronavirus in the UK is now below 1, thanks to people mostly staying at home. If that’s correct the number of new cases will level off and then decrease over the next 6 weeks.
  • Testing is increasing rapidly in most countries. The US has gone from testing 350 people on the 7th of March, to 30,000 people on the 19th of March, up to 101,000 on the 1st of April.

It is inspiring to see the world come together to help fight this pandemic, whether they are biologists, statisticians, engineers, civil servants, medics, supermarket staff, logistics managers, manufacturers, or one of countless other roles.

The Yahoo article is here.

 

Free Speech and the Stark’s Divorce

Pity the Starks of the North. As if the Red Wedding wasn’t enough, now they filed for divorce. To keep things calm, the divorce court restrained them from harassing, abusing, or making disparaging remarks about the other in front of their children and employers. Then things went south.

Winter is Coming

After a five-year marriage, Pamela Stark filed for divorce from her husband, Joe Stark. She is an attorney (formerly a prosecutor) and filed her complaint pro se. He is a sergeant with the Memphis Police Department.

Pamela’s email to the town mayor claimed she was a victim of domestic violence by Joe and a victim of misconduct by the entire Police Department in the handling of her investigation.

She named her husband by name and rank and described her version of the physical altercation between them and the events that followed. Pam asked the mayor in an email to “look into this before it goes further.”

Pamela also wrote the following in a Facebook post:

I speak now as a recent victim of domestic violence at the hands of a Memphis Police Officer. I can attest to how wide the thin blue line can get . . . However it is even more devastating. Who do you turn to when those worn to serve and protect and enforce the law, don’t.

Joe asked the divorce court to order the Facebook post removed, arguing “that such dissemination of these allegations could cause immediate irreparable harm to his reputation and employment” because he and Pam have mutual friends on Facebook. The judge agreed.

Florida Divorce and Free Speech

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children in custody cases. Florida courts have to balance a parent’s right of free expression against the state’s interest in assuring the well-being of minor children.

In one Florida case, a judge prohibited a parent from speaking Spanish to a child. The Mother was Venezuelan, and because the Father did not speak Spanish, the court ordered: “Under no circumstances shall the Mother speak Spanish to the child.”

In the Florida case, the judge was concerned about the Mother’s comments, after the Mother “whisked” the child away from the time-sharing supervisor in an earlier incident and had a “private” conversation with her in a public bathroom. She was also bipolar and convicted of two crimes.

An appellate court reversed the restriction. Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy. Florida law tries to balance the burden placed on the right of free expression essential to the furtherance of the state’s interests in promoting the best interests of children.

In other words, in that balancing act, the best interests of children can be a compelling state interest justifying a restraint of a parent’s right of free speech.

Chilling Speech

Joe testified that his co-workers at the police department saw Pam’s Facebook post, that they have many mutual friends on social media, and that a special prosecutor from another city was appointed to conduct an investigation regarding the alleged incident of domestic violence involving him and Pam.

The trial court ordered that the post be removed:

  • The Court: Ms. Stark, please stand. Are you going to comply with this Court’s orders?
  • Ms. Stark: No, I’m not.
  • The Court: All right. I’m making a finding that you are in direct contempt of court by willfully refusing to comply with this Court’s orders. You will be held held in custody until such time that you decide that you want to change your position and you apologize to this Court.

Pam at first refused to take down the post, but was jailed for four hours and then did. Pam appealed the contempt order. However, the divorce case in which the restraining order was entered was still pending.

Because she appealed from the contempt order, she was limited in her ability to raise issues, and when Pam took down the Facebook post, the contempt issue became moot.

The Reason article is here.

 

Measles, Vaccines, and Child Custody

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

Getting to the Point

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

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

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

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

Florida Child Custody

In Florida, the prevailing standard for determining “custody” is a concept call shared parental responsibility, or sole parental responsibility. Generally, shared parental responsibility is a relationship ordered by a court in which both parents retain their full parental rights and responsibilities.

Under shared parental responsibility, parents are required to confer with each other and jointly make major decisions affecting the welfare of their child. In Florida, shared parental responsibility is the preferred relationship between parents when a marriage or a relationship ends. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

Issues relating to a child’s physical health and medical treatment, including the decision to vaccinate, are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court.

At the trial, the test applied is the best interests of the child. Determining the best interests of a child is no longer entirely subjective. Instead, the decision is based on an evaluation of certain factors affecting the welfare and interests of the child and the circumstances of the child’s family.

Florida Vaccinations and Child Custody

My article on the relationship between vaccinations and child custody in Florida has been cited before. In Florida, a court can carve out an exception to shared parental responsibility, giving one parent “ultimate authority” to make decisions, such as the responsibility for deciding on vaccinations.

There are at least two cases in Florida dealing with the decision to vaccinate and custody, and they conflict! In one case, a Florida court heard the conflicting positions on immunization and decided that it would be in the child’s best interest to allow the anti-vaccination Mother to make the ultimate decision regarding the child’s immunization.

Ten years later, a different Florida court heard conflicting testimony, and decided it was in the child’s best interest to award the pro-vaccination Father ultimate responsibility to make decisions regarding the minor child’s vaccinations.

The decision to vaccinate raises interesting family law issues. It is important to know what your rights and responsibilities are in Florida.

A Dose of Reality

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

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

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

The Ynet news article is here.

 

Custody and Vegans Don’t Pair Well

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

Custody and Vegetarians

Nobu, Katz’s Deli & Carbone? Fuhgeddaboudit

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

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

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

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

Florida Custody and Vegetarians

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

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

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

Usually, religion is used by the objecting parent as a defense to vaccinating children. In the New York case, the dispute was what to feed the child. Whenever a court decides custody, or issues relating to the child’s upbringing, the sine qua non is the best interests of the child. But, deciding the religious upbringing of a child puts the court in a tough position.

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

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

Custody and the Big Apple

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

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

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

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

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

 

An Erie Child Custody and Free Speech Case

A Pennsylvania family court gave a mother sole custody of her 14 and 11-year old daughters, but prohibited her from discussing their Father’s inappropriate statements which he made to the mother’s 17-year old stepdaughter. This post examines if a court in a child custody case can prohibit free speech.

free speech custody

Talking Parents

A Mother and Father were married but separated. The parties lived together with the children from their marriage and with Mother’s daughter from a previous relationship. In January 2017, the Father made statements of a sexual nature to the 17-year old daughter.

The exact substance of Father’s statements are unknown, but the Mother testified that he told her he “had a crush on her,” that he “wanted to date her,” and that he and Mother “hadn’t had sex for so many months.” The father’s statements caused the parties’ separation.

The Mother testified that she told her daughter “some . . . but not all” of Father’s statements to her eldest daughter because the daughter was becoming agitated and withdrawn and “was really needing some answers.”

The Mother requested that the daughter not have any further contact with Father unless it occurs in a “controlled environment. Conversely, she testified the younger daughter remains oblivious to Father’s statements and wants to continue spending time with him.

The Father testified that he had made an effort to cooperate with Mother’s requests and convince her that he does not pose a threat to the Children. He reported that he attended counseling with his pastor for the last fifteen months, but that he would be willing to seek treatment from a new counselor as well.

Florida Free Speech and Child Custody

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children in custody cases. Florida courts have to balance a parent’s right of free expression against the state’s parens patriae interest in assuring the well-being of minor children.

In Florida, a judge prohibited a parent from speaking Spanish to a child in one case. A mother went from primary caregiver to only supervised visits – under the nose of a time-sharing supervisor. The trial judge also allowed her daily telephone calls with her daughter, supervised by the Father.

The Mother was Venezuelan, and because the Father did not speak Spanish, the court ordered: “Under no circumstances shall the Mother speak Spanish to the child.”

The judge was concerned about the Mother’s comments, after the Mother “whisked” the child away from the time-sharing supervisor in an earlier incident and had a “private” conversation with her in a public bathroom. She was also bipolar and convicted of two crimes.

An appellate court reversed the restriction. Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy. Florida law tries to balance the burden placed on the right of free expression essential to the furtherance of the state’s interests in promoting the best interests of children.

In other words, in that balancing act, the best interests of children can be a compelling state interest justifying a restraint of a parent’s right of free speech.

An Erie Case

On October 25, 2018, the family judge in Erie, Pennsylvania ordered that Father would exercise unsupervised partial physical custody of the youngest daughter and that Mother:

“shall not relay, or cause to have relayed, any information to the daughter regarding the facts and circumstances of Father’s inappropriate communications with her half-sister absent Father’s consent or further order of court.”

The Mother argued that the provision in the court’s order prohibiting her from informing her daughter of Father’s statements was improper, because it violated her first Amendment rights, prevented her from protecting the child from abuse, and made her responsible should the sister inform the daughter of Father’s statements.

The Mother asserts that a court may restrict a parent’s speech only when it is causing or will cause harm to a child’s welfare. She maintains that informing her daughter of Father’s statements may actually protect her from future abuse.

The appellate court ruled that the trial court’s determination that it would be in the child’s best interest to prohibit Mother from informing her of Father’s statements was not supported in the record.

While the court found that learning of Father’s statements would be harmful to the child, the court based this conclusion solely on the fact that the older sister does not want to see Father and attends counseling.

The court heard no testimony from the child’s counselor, or from any other individual qualified to give an opinion on if, when, or how, the child should learn of these statements, or what harm she might experience as a result. Therefore, the court’s conclusion in this regard was speculative.

The appellate opinion is here.

 

Child Custody and Punishment

Years of research has shown that spanking children is ineffective and may be harmful. The American Academy of Pediatrics just announced a new policy that parents not spank, hit or slap their children. With all the new research out there, people are discovery that there is a connection between child custody and punishment.

custody and punishment

New Corporal Punishment Policy

The new AAP policy against spanking reflects decades of critical new research on the effects of corporal punishment and because parents and educators put enormous trust in pediatricians for discipline advice.

When your pediatrician says not to spank, there is a very good chance that parents will listen. The other good news is that it is becoming unacceptable to use corporal punishment.

Some hospitals have a “no hit zone” policy that do not allow hitting of any kind, including parents spanking children. City leaders in Stoughton, Wisconsin made their whole cities into “no hit zones” – similar to no smoking zones.

Florida Custody and Punishment

I’ve written about child custody and punishment before. Florida does not use the term “custody” anymore, we have the parenting plan concept. For purposes of establishing a parenting plan, the best interest of the child is the primary consideration.

The best interests of the child are determined by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including evidence of domestic violence, child abuse, child abandonment, or child neglect.

Historically, parents have always had a right to discipline their child in a ‘reasonable manner.’ So, our laws recognize that corporal discipline of a child by a parent for disciplinary purposes does not in itself constitute abuse 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.

Keep in mind that lawyers, guardians and judges are watching you, and you don’t want your punishment methods to become an issue in your custody case. While there are some limited privileges for discipline, there are major risks to your custody case, and most importantly, to your children.

Spanking Doesn’t Work

There are practical reasons to stop spanking besides custody. The main one is that it does not work. Numerous studies show that spanking does not make children better behaved in the long run, and in fact makes their behavior worse.

Spanking also teaches children that it is acceptable to use physical force to get what you want. It is thus no surprise that the more children are spanked, the more aggressive or to engage in delinquent behaviors like stealing they may be.

Millions of parents have raised well-adjusted children without spanking. Nothing is perfect, but telling children clearly what you expect from them and then praising them when they do it is the best approach to discipline.

The CNN article is here.