Tag: Divorce and free speech

Sex Talk and Modifying Child Custody

In the wake of a new Florida law protecting a parent’s rights not to teach sex education, comes a case in which too much sex talk ended up modifying one parent’s child custody. Recently, a Michigan family law case drew a line between educating your children about sex and inappropriate conversations.

Sex Talk child custody

The ‘Birds and the Bees’

The parents have four children: three daughters and one son, and they have been divorced since 2018. They were awarded joint legal custody of the four children with a split: One parent had the boy, and the other parent had the three girls

In 2021, Father asked to change legal residence, parenting time, and custody relative to EJ and JJ, requesting that the trial court award him primary physical custody of the two children and that the court change their legal residence from Petoskey to his home in Plymouth, Michigan.

The Mother opposed the motion. During an evidentiary the Father introduced several exhibits, including a recorded conversation between the Mother and the three daughters indicating that she had inappropriate conversations with the children, had difficulties controlling her anger, used vulgarities and profanity in conversations with the children, and consumed an excessive amount of alcohol during parenting time.

After the evidentiary hearing, the referee recommended that the trial court deny the motion. The Father filed an objection which was heard by the trial judge in a de novo hearing. The Father argued he was not given sufficient time to present evidence necessary to meet the burden of proof, that the referee should have found that there was a joint custodial environment, and that it was in the children’s best interests to change custody.

The trial court granted Father’s motion and awarded him primary physical custody. The Mother appealed.

Florida Modifying Custody

I have written about modification of child custody before. In Florida, during the initial child custody case, a family court must determine the best interest of a child based upon all of the factors listed in our child custody statute.

After determining the best interest of the child, and entering a child custody decree, Florida law grants continuing jurisdiction to the family court to modify the custody order but does not state the conditions necessary for modification.

Modification is based, in Florida, on the substantial change test. A party seeking a modification must prove a substantial and material change in circumstances, and that the best interests of the child will be promoted by such modification.

How Not To Teach Your Children

On appeal, the Mother argued the family court abused its discretion when it modified her custody. She argued under Michigan law, courts are not permitted to “modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.”

But at trial, there was evidence the Mother was having inappropriate conversations with the children about her sex life, wrestling with the children, negligently leaving her sex toy where one child and a friend found it, and was demonstrating she had an inability to control her anger and interact appropriately with the children.

The Michigan Court of Appeals affirmed the family judge. At the time of the trial, one child was only 11 years old and the other child was only 10 years old. There was a litany of evidence that the Mother was sharing her sex life details, making remarks about a date’s erectile dysfunction, raising her voice during a conversation with the children about sexuality, leaving a sex toy exposed, and allowing the children to be in the presence of a man she was dating who became intoxicated and acted highly inappropriately, and wrestling with the children after drinking.

The Michigan Court of Appeal opinion is here.

Free Speech, Child Custody, and Insults

Free speech can be an issue in any child custody case when parents hurl insults at each other in front of their children. Because it is not in the children’s best interest, family judges can order parents not to disparage the other parent in front of the children. One Indianapolis court recently had to consider whether an anti-disparagement order went too far.

Free Speech Custody

Start Your Engines

After several years of marriage, Yaima Israel, filed for divorce from her husband Jamie Israel. After the trial, the family court judge decided that joint legal custody was an “unworkable” option based on the parents’ inability to agree about their child’s health, education and welfare. As a result, Yaima was awarded sole legal custody.

The family court’s decree also contained a non-disparagement clause. Family courts sometimes enjoin speech that expressly or implicitly criticizes the other parent.

In another case for example, a mother was stripped of custody partly because she truthfully told her 12-year-old that her ex-husband, who had raised the daughter from birth, wasn’t in fact the girl’s biological father.

In the recent Indianapolis case, the order prohibited either parent from “making disparaging comments about the other in writing or conversation to or in the presence of child.

However, the order also prohibited insulting the other parent in front of friends, family members, doctors, teachers, associated parties, co-workers, employers, the parenting coordinator, media, the press, or anyone else. All kinds of speech was banned, including “negative statements, criticisms, critiques, insults[,] or other defamatory comments.”

The Husband challenged the judge’s non-disparagement clause that restrained them from ever making disparaging remarks about one another, regardless of whether the child was present.

Florida Child Custody and Free Speech

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children. The “best interests of the child” test — the standard applied in all Florida child custody disputes between parents — gives family court judges a lot of discretion to ban speech which can harm children. Accordingly, 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 Florida, parents have had their rights to free speech limited or denied for various reasons. In one case, a mother went from primary caregiver to 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. The Mother was also bipolar and convicted of two crimes. The Florida appeals 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.

But some have argued that if parents in intact families have the right to speak to their children without the government restricting their speech, why don’t parents in broken families have the same rights?

The Constitutional Brickyard

The Indianapolis appellate court ruled that the First Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, provides that “Congress shall make no law … abridging the freedom of speech.

Restraining orders and injunctions that forbid future speech activities, such as non-disparagement orders, are classic examples of prior restraints. Non-disparagement orders are, by definition, a prior restraint on speech. Prior restraints on speech are the most serious and the least tolerable infringement on free speech rights.

While a prior restraint is not per se unconstitutional, it does come to a court bearing a heavy presumption against its constitutional validity.

To determine whether a prior restraint is constitutional under the First Amendment, the court considers: (a) ‘the nature and extent’ of the speech in question, (b) ‘whether other measures would be likely to mitigate the effects of unrestrained’ speech, and (c) ‘how effectively a restraining order would operate to prevent the threatened danger.’”

There is a compelling government interest in protecting children from being exposed to disparagement between their parents. To the extent the non-disparagement clause prohibits both parents from disparaging the other in Child’s presence, the order furthers the compelling State interest in protecting the best interests of Child and does not violate the First Amendment.

But the non-disparagement clause in this case went far beyond furthering that compelling interest because it prohibited the parents from making disparaging comments about the other in the presence of anyone – even when the child was not present.

In the final lap, the court of appeals reversed the portion of the non-disparagement clause including “…friends, family members, doctors, teachers, associated parties, co-workers, employers, the parenting coordinator, media, the press, or anyone” as an unconstitutional prior restraint.

The Indiana court of appeals decision is here.

 

Free Speech and Child Custody Disputes

Free speech, and the rights of people going through child custody disputes, are in the news again. Recently, a family law judge in Pennsylvania gagged – not the parents – but the Father’s new wife from online posting. The family judge ordered the child’s stepmother from posting anything on Facebook about the child, the Mother, or the case.

Free Speech Child Custody

Gagging Stepmothers

In the Pennsylvania case, a Father appealed from the trial court’s order that restricted the speech of his new wife, a non-party to the custody case, the child’s Stepmother. The Father argued that the family court’s order improperly restricted the non-party Stepmother’s speech on Facebook.

The Mother sought to enforce the court’s modified custody order, remove the Child from Stepmother’s home, and place the Child with Children and Youth Services (CYS). The trial court held a telephone hearing, and at that hearing, Mother told the court for the first time about a post that Stepmother had made on Facebook.

Specifically, Mother’s counsel argued the Stepmother was engaging in “pure alienation” through Facebook posts:

OK…. I’m going to lay everything out for ppl to know. My husband [Father] is currently in BCP on indirect civil contempt pertaining to child custody. The judge won’t release [Father] until our minor child attends four days of this out of state program with Linda Gottlieb. Our minor child is afraid of her Mother (she lives out of state) and has been fighting not to go to this out-of-state program with her Mother to fix their relationship. . . Our minor child is still with me as she fought not to go. How much emotionally [sic] and mental abuse can a child go through. . . I have 2 great attorneys, but no matter what we do the judge sides with the other side. They are claiming parental alienation. There is no legal record of parental alienation. Now anyone that knows me or my husband knows we aren’t those ppl. We have encouraged, positive affirmations etc.. [sic] this doesn’t matter to our minor child because the child is in fear. . . We have been accused of interfering with our child going to this program. We aren’t interfering. Our child is fighting it.

The trial court issued an order that granted Mother’s petition and stated, Father and Stepmother shall not use online or web-based communications to discuss this matter.

The trial court also order the Father and Stepmother to remove the Facebook post which contains information related to the child and not post any discussion or information regarding child’s custody or other information regarding the child.

Father raised only one issue on appeal, can the judge censor the speech of the Stepmother on Facebook even though she was not actually a party in the child custody case?

Florida Child Custody and Free Speech

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children. 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, there have been cases in which a judge prohibited a parent from speaking Spanish to a child. 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. The Mother was also bipolar and convicted of two crimes.

The Florida appeals 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.

You’ve Got a Friend in Pennsylvania

Back in the Pennsylvania case, the appellate court quickly noted that the Stepmother was simply not a party to the lawsuit between Father and Mother, she was not served with process, and she had no notice or opportunity to challenge the communications restriction order.

Because the non-party Stepmother did not have notice nor an opportunity to challenge the order, and the parties did not address the trial court’s exercise of personal jurisdiction over her the appellate court held that the family judge had no authority to impose a gag order on the Stepmother and vacated the order.

The opinion is here.

Free Speech and Child Custody in Massachusetts

Free speech and child custody are in the news as people discover they can’t say a lot of things after their child custody battle ends. A recent Massachusetts appeals court just decided whether some typical child custody order restrictions violated free speech laws.

custody free speech

Chilling Speech

In a Massachusetts court, a Father filed a complaint for custody, support and parenting time, seeking custody of the parties’ child. The Mother counterclaimed and a temporary custody order was entered.

A few months later, the family judge entered its own temporary order relating to exchanges of the child, telephone calls and exchanging addresses. After the final hearing, the court ordered joint legal custody and nearly equal timesharing for both parents.

The order also contained numerous restrictions on both parents’ speech. Although the court’s order appears to have the best interest of the child at heart, prior restraints on speech are very serious constitutional violations.

The order restrained the parents from making any disparaging or negative comments of any type of nature whatsoever to one another by telephone, text or email or to any other third person, to include the child and/or disparaging comments relative to one another electronic social media. The order also prohibited the parents from discussing legal proceedings with the child.

Florida Child Custody and Speech Restrictions

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children. 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, there have been cases in which a judge prohibited a parent from speaking Spanish to a child. 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. The Mother was also bipolar and convicted of two crimes.

The appeals 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.

Stirring the Constitutional Speech Beanpot

The appellate court in Massachusetts reversed the speech restrictions because a number of – fairly typical speech provisions for a child custody order – placed an impermissible restraint on the mother’s speech and interfered in her child rearing.

The court found the family judge failed to provide specific findings to justify a compelling State interest in placing restrictions on the mother, or to explain why the limitations were necessary to protect the compelling interest.

Prior restraints are “extraordinary remedies,” and are “permissible only where the harm expected from the unrestrained speech is grave, the likelihood of the harm occurring without the prior restraint in place is all but certain, and there are no alternative, less restrictive means to mitigate the harm.”

A prior restraint will not be upheld unless it is “justified by a compelling State interest to protect against a serious threat of harm,” and the limitation on speech is “no greater than is necessary to protect the compelling interest that is asserted as a justification for the restraint.”

Although the judge clearly was attempting to reduce future conflict between the parties in fashioning the judgment as he did, he failed to provide specific findings justifying the State’s interests in the restraints imposed; instead he simply stated that the orders were made in “the best interest of the … child,” which alone is not enough to justify a prior restraint on speech.

The Massachusetts appellate opinion is here.

 

Free Speech and Domestic Violence

In family law, when a cyberstalking complaint consists of social media posts, free speech and domestic violence can clash. In a recent case, a domestic violence court prohibited one Florida lawyer’s social media comments about the other lawyers in her case.

Cyberstalking

Injunction Junction

Florida lawyer Ashley Krapacs filed a petition for a domestic violence injunction against her ex-boyfriend and represented herself at the DV hearing. Attorney Russel J. Williams represented her Ex.

After Krapac lost the hearing, on jurisdictional grounds, she wrote an article about the opposing lawyer, saying that he lied to the judge on the record during these proceedings. As a result, Williams hired his own attorney, Nisha Bacchus, to sue Krapacs for defamation.

Krapacs responded by writing several social media posts disparaging the new lawyer, Bacchus, with personal insults for representing Williams in the defamation suit against her.

Then Krapacs created a blog post which claimed Bacchus filed a frivolous lawsuit against her, accused her of being a bully, and included a vulgar insult. She tagged Bacchus in more posts and hurled insults at Bacchus and her law firm and identified the car Bacchus drove.

In one of her final Facebook posts, Krapacs stated she was going to connect with Bacchus’s former clients to sue her for malpractice. Bacchus sought to stop this by filing a petition for an injunction, alleging Krapacs was cyberstalking her.

The DV judge entered the injunction and limited Krapacs’ use of her office space since both Krapacs and Bacchus had offices in the same building. The judge also prohibited Krapacs from posting on social media about Bacchus and ordered her to take down all the offending posts about Bacchus.

Krapacs appealed.

Family Law and Free Speech

I’ve written about free speech in family law before. Family courts have a lot of power to protect children, and that can involve restraints on free speech. Speech can be enjoined under our domestic violence laws.

Domestic violence injunctions prohibiting free speech are subject to constitutional challenge because they put the government’s weight behind that prohibition: a judge orders it, and the police enforce it.

Florida, the term “domestic violence” has a very specific meaning, and it is more inclusive than most people realize. It means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

Domestic violence can also mean cyberstalking. Cyberstalking is harassment via electronic communications. A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree.

A credible threat means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm.

Cyberstalking and Free Speech

The appellate court felt Krapacs’ actions did not qualify as cyberstalking because they did not constitute a pattern of conduct composed of a series of acts over time evidencing a continuity of purpose.

Retagging in social media posts for four hours constituted, in the court’s view, one instance of qualifying conduct under the statute. The other acts Bacchus complained of were deemed to be constitutionally protected and did not qualify as additional instances of repeated stalking.

The court also found that the injunction prohibiting Krapacs “from posting Nisha Bacchus, Nisha Elizabeth Bacchus or any part thereof, on any social media or internet websites, and requiring her to take down all social media and internet posts that reference Nisha Bacchus was overbroad.

While the appellate court held that her comments could not be subject to an injunction, it did find that Krapacs was not immune from civil liability for her actions and could face money damages.

Then there’s the Florida Bar, which then filed an emergency suspension petition against Krapacs. The Bar viewed her social media tweets, posts and comments as arising out of the opposing lawyers’ representation of clients who were litigating against her.

The Bar called Krapacs strategy “terrorist legal tactics” and felt it was prejudicial to the administration of justice.

After a hearing, the referee recommended a two-year suspension from the Florida Bar. The Florida Supreme Court reviewed the case, disapproved of the two-year suspension, and instead disbarred her.

The opinion is here.

 

You Can’t Post That: Free Speech and Child Custody

Free Speech and child custody becomes an issue every time someone posts photos of children on social media. Glowing grandparents should be especially careful. That’s because in the European Union, balancing freedom of speech and privacy has become much trickier after a Dutch court ordered a grandma to take down photos of her grandchildren.

Free Speech and Custody

European Union Speech Laws

In the Netherlands, a woman was asked by her daughter to take down pictures of her children from Facebook and Pinterest several times, but she did not respond. The daughter took this little family dispute to court, and asked a judge to stop her.

A judge in the province of Gelderland, in the eastern part of the country, decided that the grandmother was prohibited from posting photos on social media of her three grandchildren without the permission of her daughter, the children’s mother.

The District Court judge said grandma violated Europe’s sweeping internet privacy law, called the General Data Protection Regulation, or G.D.P.R. In the Netherlands, the G.D.P.R. dictates that posting pictures of minors under the age of 16 requires permission from their legal guardians.

The women, whose names were not provided in the court documents, fell out about a year ago and hadn’t been in regular contact, according to filings in the court case. After the children’s mother asked for the pictures to be deleted without the desired effect, she took the case to court.

Publishing the children’s pictures on social media would, according to the mother, seriously violate their privacy.

The Gelderland judge agreed that the grandmother did not have permission to post the pictures under General Data Protection Regulation (GDPR) legislation.

Those rules do not normally apply to the storage of personal data within personal circles such as family. However, in this case, the grandmother had made the photos public without the consent of the mother — who has legal authority over which data of her underage children may be stored and shared.’

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. 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. Currently, grandparents have little to no rights to visitation in Florida.

In Florida, there have been cases in which a judge prohibited a parent from speaking Spanish to a child. 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.

The appeals court reversed the restriction. Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy.

Not unlike the new EU law, 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.

As the Windmill Turns

The Dutch court also held that by posting of photographs on social media, the grandmother made them available to a wider audience, the court’s ruling, published earlier this month, explained.

“On Facebook, it cannot be ruled out that placed photos could be distributed and that they may come into the hands of third parties”.

The judge ordered the grandmother must remove the pictures of her grandchildren from Facebook and Pinterest within ten days, the judge ruled. If she does not, she must pay a penalty of €50 ($55) per day that the photos are online, with a maximum penalty of €1,000 ($1,100).

The daughter had asked to impose a penalty of €250 ($275) per day if the photos remained. According to the mother’s statement, publishing the children’s pictures on social media can seriously violate their privacy.

GDPR is the European Union’s data privacy law, which came into effect in 2018. It gives people more control over their personal data and forces companies to make sure the way they collect, process and store data is safe.

The EU’s intention was to achieve a fundamental change in the way companies use data — with its central idea being that people are entitled “privacy by default.” Although EU countries seem to have taken their data protection obligations under the GDPR seriously, their efforts to balance data privacy and freedom of expression have been more uneven.

Many are concerned that the GDPR’s safeguards to protect the right to data privacy may compromise freedom of expression. As the practice of enforcing the GDPR by family members continues to unfolds, many are watching if the EU can balance privacy and freedom of expression.

The CNN 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.

 

Communicating During Divorce

The divorce between Jersey Shore star, Jenni “JWoww” Farley, and her husband, Roger Mathews, is getting uglier. Communicating during divorce, especially when you have children, is never easy. Are there lessons to learn from South Jersey?

communicating during divorce

Communicating ‘down the shore’

The Jersey Shore actress released a long statement on her website, accusing her ex of physical abuse and allegedly putting their two young children in harm’s way.

In a video message released the following day, Mathews said her “rant” was “highly erroneous” and “had many lies in it” and then he posted copies of legal documents he says his attorneys sent to the divorce judge.

Mathews posted a lengthy written message on his website:

You painted me as a woman beater. The facts are these. No one, man or woman, husband or wife has the right to put their hands on each other. I take responsibility for that night in question, and one other night that I can think of that, I pushed you. You edited out your actions and violent behavior prior to me pushing you which I knew you would do.

Not to be outdone, JWoww’s team then said in a statement that the accusations he makes in the documents are “laced with false statements.”

Florida No-Fault Divorce

I’ve written about communicating during divorce before, and the “good divorce” too. Historically in Florida, in order to obtain a divorce, one had to prove the existence of legal grounds such as adultery.

This often-required additional expenses on behalf of the aggrieved party, only serving to make the divorce process more expensive and cumbersome than it already was.

Florida Statutes actually still provide that these things may be considered under certain circumstances in the award of alimony, equitable distribution of marital assets and liabilities, and determination of parental responsibility.

However, case authority shows little consideration from a legal perspective, relegating them to more of an emotional appeal. But just because Florida does not require a showing of fault does not mean you should go out and create fault either!

In the years leading up to the enactment of “no-fault” divorce, courts often granted divorces on bases that were easier to prove, the most common being “mental cruelty.”

In Florida, 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 before filing the petition, and the marriage is irretrievably broken.

Fist Pump!

For Jersey Shore cast members, whose way of life was “GTL” (gym, tan, laundry) communicating during divorce is not the time to pull punches. But should they be making these online admissions?

We look like a–holes to the world. We are. We are both a–holes.

Mathews also added:

You claim in your rant that I put our children in harm’s way by filming myself and driving. I was doing 20 miles an hour leaving my buddy’s development, but I will concede that that was not well thought out and I will absolutely refrain from doing that in the future. It’s hypocritical of you however cause you are on the phone constantly while driving and doing your makeup and texting.

Communicating during divorce can be ugly and spiral out of control. Many would be surprised to learn divorce lawyers and judges are not spoiling to see a good fight.

The E Online article is here.

 

Divorce Privacy

Like any optimist, U.S. Rep. Keith Ellison is hoping divorce privacy laws will keep his personal history from impacting his campaign to become Minnesota attorney general. That may be difficult with the Star Tribune suing to unseal his divorce records.

Divorce Privacy

Minnesota Allegations

Ellison and his ex-wife, Kim Ellison, divorced in 2012. The related records have been sealed, so the public cannot access the information. The efforts to unseal the divorce records follow allegations by Ellison’s ex-girlfriend, Karen Monahan, that Ellison domestically abused her in 2016.

Ms. Monahan, a Sierra Club organizer, reportedly said she suffered “emotional and physical abuse” during their long-term relationship, including an incident in which she said Mr. Ellison dragged her from a bed and screamed obscenities at her.

The Star Tribune argued that, given the public interest around that situation and Kim Ellison’s public support of her ex-husband, the divorce records are a matter of concern to voters.

Divorce records are typically public, but judges will often agree to seal them if both parties to the case agree and no one else objects.

Florida Divorce Privacy

I’ve written on divorce privacy issues before. Divorce privacy is an issue that comes up a lot. Divorces in court are public events, and the filed records of court proceedings are public records available for public examination.

Both the public and the media can challenge any closure order by a divorce court. The closure of court proceedings or records should only really occur  when it’s necessary to comply with established public policy, to protect trade secrets; or to protect children in a divorce among other reasons.

Florida also has new rules protecting sensitive data from public view. This includes protecting Social Security, Bank Account, Debit, and Credit Card Numbers because if those numbers are included in a document, they may become part of the public record.

If information is absolutely required, there is a rule with procedures for sealing and unsealing of court records. Also, the Clerk of Court has the authority to redact or make confidential only specific information.

If sensitive information has already been filed in Court Records, you must complete and submit a “Notice of Confidential Information Within Court Filing” in order to remove or seal it.

Close Race

The Star Tribune argued that, given the public interest around that situation and Kim Ellison’s public support of her ex-husband, the divorce records are a matter of concern to voters.

Divorce records are typically public in Minnesota, but judges will often agree to seal them if both parties to the case agree and no one else objects. The Ellison campaign released a statement from Kim Ellison on behalf of both her and Keith Ellison.

“Our divorce simply isn’t the public’s business, and therefore, when we separated, we jointly asked the court to seal the file. Now, one month before a closely contested election for Minnesota Attorney General, a conservative group wants to probe our divorce file in search of something to use against Keith in this race. I am disappointed that the Star Tribune would choose to file this motion.”

Polls show this is a very tight attorney general race. A poll released September 16 shows Republican challenger Doug Wardlow and Ellison with 41 percentage points each. The Star Tribune/Minnesota Poll released September 19 shows Ellison with a five-point lead. That is still within the margin of error.

The Star Tribune article is here.

 

Divorce & Free Speech

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Wednesday, June 17, 2015.

The colorfully named “The Pyscho Ex-Wife,” was a website launched by a divorcee to air his frustrations about his divorce. It turned into a battle over free speech. Can you publicly bash a parent, or does the best interests of the child beat free speech?

The Psycho Ex-Wife was a popular site:

“We have been through 3 custody evaluations, 6 false contempt petitions, 3 custody schedules, 1 psych evaluation, 1 false child abuse allegation, 2 false calls to the local sheriff’s office, 4 years of parental alienation, $80,000, 1 break in, 1 case of stalking, 1 restraining order, and we FINALLY have 50/50 custody of their children”

The blog quickly grew into a huge community, with a recommended reading list in which registered members discussed everything from mental health to legal issues.

The Wife complained to Pennsylvania, Judge Diane E. Gibbons judge, who ordered him to shut The Psycho Ex-Wife down.

“Father shall take down that website and shall never on any public media make any reference to mother at all, nor any reference to the relationship between mother and children, nor shall he make any reference to his children other than ‘happy birthday’ or other significant school events.”

“I don’t care if you guys fight in private,” Gibbons said in her ruling. “I don’t care what you do in private. But you are not going to do it in front of these kids.”

I’ve written about free speech and family law before. According to UCLA law school professor and First Amendment expert Eugene Volokh:

“The court order categorically orders the removal of a Web site, and prohibits all public statements – factually accurate or not – by one person about another person,” he wrote. “That strikes me as a pretty clear First Amendment violation; whatever the scope of family courts’ authority to protect children’s best interests might be, it can’t extend to criminalizing one adult’s public speech about another adult.”

In Florida, as under the U.S. Constitution, offensive speech is protected as long as it isn’t obscene, defamatory, or threatening to national security. Speech restrictions are ordinarily unconstitutional.

However, if the speech restrictions in family court are narrowly focused on preventing one parent from undermining the child’s relationship with the other parent, they may pass constitutional muster.

Professor Volokh’s exhaustive article published in the NYU Law Review is available here.