Tag: Domestic Violence

Speaking at the 2020 Case Law Update

Posted by Ron Kauffman on

For anyone interested who hasn’t already registered, I will be speaking at the 2020 Case Law Update on December 10, 2020. Join me and fellow board certified Marital & Family Law attorney, Reuben Doupé, for an interactive discussion on some of the major Florida family law decisions that helped make 2020 a memorable year.

case law

Sponsored by the Florida Bar Family Law Section, attendees will be eligible for 2 CLE credits – 0.5 of which may be applied towards Ethics.

Topics will include the latest decisions from Florida appellate courts on modifications, parenting plans, alimony, equitable distribution, child support, relocation, enforcement, contempt, paternity, attorney’s fees, and disciplinary and ethical considerations.

Registration is here.

Caring is Creepy

Posted by Ron Kauffman on

In family law, after a relationship ends, caring can be creepy. But is creepy behavior stalking? One Florida man – a father’s former boyfriend when the father’s child was born – recently found out.

caring is creepy

Gone for Good

Santiago had a long-distance relationship with the child’s father, Leon. The relationship took place at the same time the father’s child, M.L., was born through a surrogate. But Santiago and the father never resided together with the child. Their relationship ended after M.L. was about one and a half years old.

But Santiago was not gone for good. Leon sensed Santiago was following them like a phantom limb. Leon filed a petition on behalf of his child to stop Santiago from allegedly stalking the child. The father argued Santiago was engaging in some creepy obsessive behavior, including:

  1. getting a tattoo of M.L.’s name on his body;
  2. posting images of M.L. on Facebook and Instagram, representing that M.L. was his son;
  3. mailing him packages; (iv) emailing the father to express his love for M.L.;
  4. contacting the surrogate for info on them;
  5. appearing outside their home; and
  6. driving by a restaurant the father and child were eating at and making eye contact with them.

The trial court entered a final judgment preventing Santiago from having any contact with M.L. and from posting any images or comments about M.L. on all social media.

Santiago appealed.

Florida Stalking Injunctions

I’ve written about family law injunctions before, especially when free speech is impacted. Family courts have a lot of power to protect children, and that can involve restraints on free speech, such as posting on social media. That’s because 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.

In 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 include 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.

New Slang

The appellate court held that Florida authorizes injunctions against stalking.

“Stalking” is when “[a] person . . . willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person.”

However, aside from finding that Santiago had engaged in “stalking-like” and “creepy” behavior, the trial court did not make any express findings with respect to any of the statutory elements for stalking.

For example, “follows” means to tail, shadow, or pursue someone. In Santiago’s case, the father established, at most, that Santiago had appeared outside the father and M.L.’s and ate at the same restaurants as the father and M.L., but Santiago was never asked to explain any of these occurrences. The court simply found Santiago’s conduct, was not an example of “following” and even if it was, it wasn’t willful and malicious.

Also, the child was “totally unaware” of Santiago’s conduct, there was no evidence that Santiago’s conduct had caused “substantial emotional distress” to the child so as to constitute “harassment.”

In the inverted world of stalking law, getting a tattoo of someone else’s child, emailing the father, mailing packages to that child, contacting the surrogate to gather intel, showing up uninvited outside the child’s home, showing up at the same restaurants at the same time, making eye contact with the child, and social media posts, didn’t amount to “harassing.”

The court found that Santiago’s online postings referenced the child, but didn’t constitute “cyberstalking” because Florida requires social media threats be directed to the individual — not by content, but by delivery.

Since social media posts are generally delivered to the world at large, Florida courts have interpreted a course of conduct directed at a specific person to exempt social media messages from qualifying as the type of conduct, and Santiago never delivered his social media posts to the child.

The court agreed Santiago’s conduct might have been “creepy”, but the to impose a permanent stalking injunction against Santiago, there must be evidence that Santiago “willfully, maliciously, and repeatedly followed, harassed, or cyberstalked.”

The opinion is here.

 

Free Speech and Domestic Violence

Posted by Ron Kauffman on

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.

 

Divorce and Domestic Violence

Posted by Ron Kauffman on

Police in California are investigating whether a “tumultuous divorce” was the reason a father is accused of murdering his still-missing 5-year-old son. What is the link between divorce domestic violence?

Aramazd Andressian Sr. was arrested on Friday and set to be arraigned this week — allegedly executed a “pre-planned” killing of little Aramazd Andressian Jr., investigators said in a news conference. The boy was last seen after midnight April 21 at Disneyland in Anaheim with his dad, prompting an ongoing months-long search.

Andressian had intended to take his own life before he was found hours later passed out in South Pasadena’s Arroyo Park, Los Angeles County Sheriff’s Department officials said.

Police initially charged him with child endangerment and child abduction, but a lack of evidence allowed him to walk free from jail a few days later. Authorities arrested Andressian in Las Vegas Friday because they feared he would flee the country, they said Monday.

Florida Domestic Violence

Injunctions for protection against domestic violence are critical to the safety of many. I’ve written about domestic violence before. Anyone scanning the headlines in the Miami Herald knows that the horrors of domestic violence are all too real:

“Dania Beach man arrested in fatal shooting of girlfriend”

Miami Herald, Aug. 12, 2015

“Miami Gardens man held in fatal shooting of ex-girlfriend”

Miami Herald, June 25, 2015

“Man Charged with Murder After Killing Girlfriend . . .”

Miami Herald, May 17, 2015

In 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.

When discussing family or household members, Florida law defines these to mean spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married.

In Florida, individuals who have experienced domestic violence have civil and criminal remedies to protect themselves from further abuse. Protection orders may include the victim’s children, other family members, roommates, or current romantic partner. This means the same no-contact and stay-away rules apply to the other listed individuals, even if the direct harm was to the victim.

Signs of Domestic Violence

While there are many signs, you may be experiencing domestic violence and not even realize it. For example, if your partner is doing any of these or other unwanted behaviors, you may be a victim of domestic violence:

  • Using your children against you
  • Calling you names and hurting you emotionally
  • Harming your pets
  • Acting with extreme jealousy and possessiveness
  • Isolating you from family and friends
  • Threatening to commit suicide or to kill you
  • Controlling your money
  • Withholding medical help
  • Stalking you
  • Hiding assistive devices
  • Minimizing the destructive behavior

Is there a link between divorce and domestic violence? Many believe that divorce can be a triggering event for domestic violence.

In fact, the danger of serious violence may be at its highest point when a person acts on a decision to leave an abusive relationship.

The California Case

The man, who’d dyed his hair and shaved his beard, was exhibiting behavior inconsistent with that of a grieving parent, police said. A detective cited “a tumultuous divorce that they were going through at the time” as a potential motive for the apparent killing.

“My heart is shattered and I will miss my son immensely each and every second of every day for the rest of my life,” Aramazd’s mother, Ana Estevez, said in a statement.

The grieving mom went on to use the little boy’s nickname: “Picqui was everything great in my life, and I cannot imagine the emptiness and the void that I will bear until we are together again someday,” she said. If convicted, Andressian faces 25 years to life behind bars.

The CNN story is here.

 

New Supreme Court Domestic Violence Ruling

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Domestic Violence on Wednesday, June 29, 2016.

It’s not every day the U.S. Supreme Court decides a case impacting family law. This week, it ruled on the intersection between domestic violence and gun control.

NPR reports that the majority opinion, written by Justice Elena Kagan, concludes that misdemeanor assault convictions for domestic violence are sufficient to invoke a federal ban on firearms possession.

I’ve written before about domestic violence. A 1996 federal law prohibits a person with a “qualifying” misdemeanor domestic violence conviction from possessing, shipping, or receiving a firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The plaintiff in the U.S. Supreme Court case, Stephen Voisine, pleaded guilty to misdemeanor assault charges after slapping his romantic partner. Several years later, he was caught with a firearm in violation of a federal law affecting convicted domestic abusers.

Stephen’s case, Voisine v. United States, attracted a lot of attention recently because Congress has been trying to tighten gun control laws, and because Justice Thomas asked questions during oral argument for the first time in a decade.

In Voisine, the U.S. Supreme Court ruled, in a 6-2 vote, that people convicted of misdemeanor domestic violence can be barred from owning firearms.

The majority opinion, written by Justice Elena Kagan, concluded:

Our answer is informed by congressional recognition … of the special risks posed by firearm possession by domestic abusers. “Domestic violence often escalates in severity over time … and the presence of a firearm increases the likelihood that it will escalate to homicide….”

The NPR article is here.

Send Domestic Violence Victims To Jail?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Domestic Violence on Wednesday, October 14, 2015.

Domestic violence injunctions are critical for safety in divorce, but unlike other crimes, domestic violence victims sometimes fail to appear at trial. Can a victim go to jail?

I’ve written about domestic violence (D.V.) before. And anyone scanning the headlines in the Miami Herald knows that the dangers of domestic violence are all too real.

But in D.V. cases, a victim’s non-cooperation by failing to appear at trial, or recanting testimony, is a well-known problem. Some estimate up to 90% of D.V. victims recant or minimize reports of abuse.

The usual response to a failure to appear and recanting, (or even false statements) in D.V. cases is to turn a blind eye. After all, who wants the bad press for prosecuting – or sentencing to jail for contempt – a poor, battered, traumatized domestic violence victim?

On the other hand, turning a blind eye to a crime committed by domestic violence victim, such as perjury or disobeying a subpoena, has its own repercussions. This is a big conflict in D.V. court.

Earlier, a Seminole County domestic violence judge resolved the conflict by scolding the victim and then sentencing her to 3 days in jail for failing to appear to testify against her attacker.

The link below has a video of the proceedings in July as a sobbing woman tried to explain why she didn’t attend the trial for the father of her 1-year-old son – even though a subpoena required her presence and the judge seated a jury.

“Your Honor, I’m very sorry for not attending …,” said the woman. “I’ve been dealing with depression and a lot of personal anxiety since this happened …”

As deputies placed the woman in handcuffs, she begged Collins for a different outcome. But the judge closed her binder and told the woman to “turn around.”

In addition to the wasted resources, because she refused to testify against her attacker, the defendant was sentenced to only 16 days in jail, minimizing a violent crime.

There is a conflict about how to handle victims who fail to appear or lie in a domestic violence cases. There is little guidance over when and if a victim should be charged can be arbitrary.

The video and story can be seen here.

New Domestic Violence Law & Does Margarine Cause Divorce?

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On behalf of Ronald H. Kauffman, P.A. posted in Domestic Violence on Friday, May 16, 2014.

Few people realize that the first hearing for a divorce injunction is ex parte – meaning the other side doesn’t show up or even know about it. In ex parte hearings, you can’t introduce evidence other than sworn pleadings and affidavits. A new law changes that.

The latest legislative session ended, and Governor Scott signed many bills into law. As part of the flock of bills flying out of Tallahassee, a new bill amends Florida law to allow courts in domestic violence cases to take judicial notice of court records when imminent danger is alleged.

Ordinarily, the Due Process clause of the Constitution protects litigants in ex parte hearings, limiting the kind of evidence a party can try to admit without them knowing.

This new bill, which became law this week, provides a waiver to the Due Process requirements for the admissibility of evidence at ex parte temporary injunction hearings.

The Senate bill can be read here.

***

Is there a link between eating margarine and the divorce rate?

Florida is a No-Fault Divorce state, so it doesn’t much matter the cause of a divorce. But, have you ever wondered why people get a divorce? I’ve blogged about this topic before. For instance, could divorce rates be linked to other variables?

There could be a correlation, but proving a mere correlation between things does not mean that one causes the other. Just because there is snow outside your window in the morning doesn’t mean sleeping causes snow. Some events are just coincidences, or in statistic-speak, “spurious correlations.”

A spurious correlation occurs when two things appear related, but in reality are not. For the statistically inclined, Tyler Vigen has assembled a few funny charts of spurious correlations. I’ve copied a funny chart showing the rates of divorce and margarine consumption.

More of these funny correlations are available at Tyler Vigen’s website.