Tag: Equal Timesharing

Grandparent Visitation and Remarriage

Posted by Ron Kauffman on

In Ohio, an order granting grandparent visitation comes into question after the remarriage of the child’s father. Does the father’s remarriage, and the adoption of the child by the new stepmother, cut off the grandmother’s court ordered visitation rights?

Grandparent Visitation

The Heart of It All

The child. L.S. was born in 2014, to unmarried parents. In 2019, a court awarded John Snyder – the child’s natural father – legal custody. At the same time, Zadunajsky, L.S.’s paternal grandmother, was granted companionship rights with the child.

Then in 2021, Snyder filed a motion to terminate or modify the grandmother’s visitation order because the child has now been adopted by his stepmother, and there is an intact family. The lower court granted the Father’s Motion for Termination without any hearing or the proffering of any evidence.

Instead, the magistrate ruled as a matter of law that in Ohio:

Once the adoption took place, the Paternal Grandmother no longer had standing to seek visitation. Once an adoption order has been entered, all grandparent visitation rights are terminated.

The lower court held there was no case law in Ohio that allows a court to grant or maintain established visitation once an adoption is granted. The legislature has not provided grandparent visitation in the case of an adoption.

This legal reality is very frustrating to courts because the main issue should be what is in the best interest of the child. The lower court also held that the Paternal Grandmother would only have standing to seek visitation upon the death of Father or the divorce of the stepmother.

The grandmother appealed arguing that an adoption by the step-mother of the child was a proper basis for terminating the pre-existing visitation of the paternal grandmother.

Florida Grandparent Visitation

Under current law in Florida, a grandparent may be awarded some visitation rights in very limited situations, such as when the child’s parents are deceased, missing, or in a permanent vegetative state. If only one parent is deceased, missing, or in a permanent vegetative state, the other parent must have been convicted of a felony or a violent offense in order for a grandparent to be able to petition for visitation.

Additionally, a Florida court has to also find that the grandparent has established a prima facie case that the surviving parent is unfit or poses a danger of significant harm to the child. If that burden is not met, the court must dismiss the grandparent’s petition.

In 2022, Florida amended the grandparent visitation law as a result of the murder of FSU Professor Dan Markel. Supporters of the amendment call it the “Markel Act.” Professor Markel was shot to death in his driveway by hitmen hired by his ex-brother in law. His ex-mother in law was recently arrested at Miami International Airport after attempting to board a one way flight to Vietnam.

The new law creates a rebuttable presumption for grandparent or step-grandparent visitation, but only in cases where one parent has been found criminally liable for the death of the other parent, or “civilly liable for an intentional tort causing the death” of the other parent.

The presumption may be overcome only if the court finds that visitation is not in the child’s best interests. The bill does not distinguish between biological grandparents and step-grandparents.

Somewhere in Ohio

The Ohio appellate court agreed with the grandmother and reversed. The opening words of the statute exempt a spouse and the relatives of the spouse from the effects of a final decree of adoption. As Snyder was spouse of the adopting stepparent and Zadunajsky was a relative of Snyder, they are exempt from those effects.

The Father also argued that previous cases affirmed divesting biological grandparents of their visitation and companionship rights. However, the legislature’s intent was to find families for children. The legislature was concerned that if adoptive parents are forced to agree to share parenting responsibilities with people they don’t know, potential adoptive parents will be deterred from adopting. But that legislative intent did not apply to the relatives of the spouse/biological parent in a stepparent adoption.

On remand, the family court may consider whether the continuation of Zadunajsky’s companionship rights is in the best interest of the child in light of the stepparent adoption.

The opinion is here.

Three Men Family Law Case Update 2023

Posted by Ron Kauffman on

The Three Men and a Family Law Case Update is back. Many of the changes to timesharing and alimony would cause some to say 2023 has been an “active” year in Florida  family law. So, for anyone interested in discussing the latest developments in Florida family law, and hasn’t already registered, I will be speaking at the Three Men and a Family Law Case Update 2023 on Thursday, October 19, 2023 starting at 12:00 PM to 1:30 PM

Case Law Update

Join me and fellow Florida Bar Board Certified Marital & Family Law attorneys, Reuben Doupé and Cash A. Eaton, for an interactive discussion on some of the major Florida marital and family law changes that have redrawn the family law landscape in 2023.

The course is an online webinar, and we will be reviewing many of the most important recent appellate opinions within Florida Marital and Family Law. Reuben, Cash and I will cover a wide range of topics from Florida’s newest family law cases.

Sponsored by the Florida Bar Family Law Section, attendees will be eligible for 1.5 CLE credits.

Registration is still open so register here.

Florida Releases Three New Child Custody Updates

Posted by Ron Kauffman on

Florida just released major new updates to our child custody and timesharing laws. With these new releases, family lawyers can expect a presumption in favor of a equal timesharing, some bug fixes, and overall improvements to enhance your user experience.

Child Custody Update

Florida Child Custody and Timesharing

Florida courts have consistently ruled that a parent’s right to the care and custody of his or her child is an important interest that is given deference unless there is some powerful countervailing interest requiring the child’s protection. Each parent also has responsibilities for their children, including supervision, health and safety, education, care, and protection.

Child custody in Florida is broken down into two distinct components: parental responsibility (which is decision-making) and timesharing (physical custody and visitation rights). Both components must be incorporated into a “parenting plan.”

Although the right to integrity of the family is among one of the most fundamental rights, when parents divorce or separate, the parents’ rights are subject to the overriding concern for the ultimate welfare their children. We call this, the “best interest” test.

Florida did not have a presumption in favor of any specific timesharing schedule. In establishing timesharing, the court always considered the best interests of the child and evaluated all factors affecting the welfare and interests of the child and the circumstances of the family.

What’s new in the latest release?

Equal Timesharing

One of the latest updates just released is a new presumption in favor of equal timesharing for both parents. According to the release notes:

There is a rebuttable presumption that equal time-sharing of a minor child is in the best interests of the minor child. To rebut this presumption, a party must prove by a preponderance of the evidence that equal timesharing is not in the best interests of the minor child. Except when a time-sharing schedule is agreed to by the parties and approved by the court, the court must evaluate all of the factors set forth in subsection (3) and make specific written findings of fact schedule when creating or modifying a timesharing schedule.

With this new update, Florida has created a rebuttable presumption that equal timesharing is in the best interest of the child at issue. As such, a court must operate under the rebuttable presumption in favor of equal timesharing when creating or modifying a parenting plan.

In order to overcome the new law’s rebuttable presumption, a party must prove by a preponderance of the evidence that equal timesharing is not in the best interests of the minor child.

The new law still generally requires a court to evaluate all factors listed under the statute, however now it requires the court to provide written findings of fact for such factors.

Modifications

A new bug fix is an update to the procedure for modification of parenting plans. Generally, a court may only modify a parenting plan and timesharing schedule after a substantial, material, and unanticipated change in circumstances has been established.

The requirement for a substantial change in circumstances promotes finality in family cases, and reflects the general belief that stability is good for children. The test to modify timesharing of a minor child is to prove circumstances have substantially and materially changed since the original custody determination; the change was not reasonably contemplated by the parties; and the child’s best interests justify changing custody.

Demonstrating a substantial change in circumstances is an extraordinary burden on users. But the burden was a design feature not a flaw. The heavy burden is intended to preclude parties from continually disrupting the lives of children by initiating repeated custody disputes.

However, when there have been significant changes affecting the well-being of the child, especially when the change of circumstances has occurred over a substantial period of time, changes may be necessary.

The new update streamlines the modification experience by removing the requirement that a party who demonstrates the alleged substantial and material change in circumstances which warrants modification of a parenting plan or timesharing schedule, must also demonstrate that the change be unanticipated.

Relocation

Another bug fix attempts to streamline the user’s relocation experience. There is currently no presumption in favor of or against a request to relocate with a child when the relocation will materially affect the current timesharing and contact with the other parent.

But simply relocating alone was not considered a substantial change in circumstances to warrant modification. If you were the user seeking to modify timesharing, you still had to overcome the substantial change test before a court could address the modification.

In custody disputes involving the relocation of a parent, courts generally conclude that the relocation does not amount to a substantial change if the relocation is not a significant distance away from the child’s current location. As such, a parent’s relocation alone is not considered a sufficient to trigger a modification of timesharing and custody under current law.

Under the new law, if the parents of a child live more than 50 miles apart when the last order establishing time-sharing is entered, and a parent subsequently moves within 50 miles of the other parent, then that move may be considered a substantial and material change in circumstances for the purpose of modifying the time-sharing schedule.

The move does not need to be unanticipated to warrant a modification of the time-sharing schedule. However, modification of the time-sharing schedule may not be permitted if the modification is not in the best interests of the child after an analysis of the statutory factors.

The new statutory amendments are here.

Version 61.13 will be available July 1st.

Pet Custody in Tennessee

Posted by Ron Kauffman on

The issue of pet custody is increasingly becoming big news in many jurisdictions as people’s views of their relationships with pets change. A new proposed Tennessee pet custody bill could bring a pet custody and visitation law to the Smokey Mountains.

pet custody tennesee

Pet Custody at its Best

Generally, when couples divorce, current law has always been that pets are treated pretty much the same as ownership of your living room couch would be – or any other piece of property for that matter. There has traditionally never been a thing called pet visitation at common law.

Two Tennessee state lawmakers are now trying to change the traditional way of dealing with pets in divorce with some new legislation. According to reports, the new bill would allow a family law judge to determine pet custody based on what’s in the best interest for the wellbeing of a pet.

Tennessee HB467/SB568 essentially states that the family law court may provide for the ownership or joint ownership of any pet or companion animal owned by the parties, taking into consideration the well-being of the animal. If passed in its current state, the act would take effect July 1, 2023.

Tennessee Representative, Caleb Hemmer, a Nashville Democrat, said he tackled the issue because custody of a pet can be a deeply emotional issue.

“For many people, pets are like family members and even cared for like children. It only makes sense for courts to treat them the same way.”

Politicians began to research passing a bill after they personally lived through the painful experience of losing custody of the family dog during a divorce.

Florida Pet Custody

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

Pets are becoming a recognized part of the family. Some would argue they’re a modern couple’s new kids. About 15 years ago, states began to allow people to leave their estates to care for their pets. Recently, courts have gone so far as to award shared custody, visitation and even alimony payments to pet owners.

Florida doesn’t have pet custody or visitation laws. Florida courts are already overwhelmed with the supervision of custody, visitation, and support matters related to the protection of children.

Not all states have ruled out a visitation schedule for dogs like Florida. For instance, while Texas also views dogs as personal property, in one case a Texas court authorized visitation. A new California law changed the way pet custody is handled in divorce cases. The law gives judges the power to consider the care and the best interest of the pet when making decisions.

According to a recent survey of the American Academy of Matrimonial Lawyers, about 30% of attorneys have seen a decrease over the past three years in pet custody cases in front of a judge.

Over the last decade, the question of pet custody has become more prevalent, particularly when it involves a two-income couple with no children who shared responsibility for, and are both attached to, the pet.

Smiling in the Smokey Mountains

The issue of pet custody is gaining traction around the U.S. and the world as pet ownership climbs. The COVID pandemic help to further propel pet ownership and this issue. A new Forbes Advisor survey found that an overwhelming majority of pet owners – about 78 percent – acquired their pets during the pandemic.

Already about five states and Washington D.C. have passed similar pet custody laws. The current bill proposal by Tennessee politicians Hemmer and Yarbro applies to any pet owned by a married couple.

The American Academy of Matrimonial Lawyers has repeatedly reported that there’s been an ever increase in arguments over pet custody in recent years. Additionally, the drafters of the Tennessee bill want more jurisdictions to pass pet custody laws.

The Axios Nashville article is here.

Pet Custody in China

Posted by Ron Kauffman on

Pet custody is sweeping the world. In the People’s Republic of China, a recent divorce settlement was stalled after the divorcing couple was unable to agree on who was entitled to custody of the pet corgi.

Pet Custody

The New Kids in Divorce?

The couple, surnamed Xu and Li, from Quzhou city in Zhejiang, one of the more wealthy provinces in eastern China, agreed to get divorced in April this year. The parties reached agreement on the distribution of their joint assets and debts after their seven-year marriage, with one furry exception.

The couple have no children, but both are enthusiastic animal lovers. Accordingly, custody of a pet corgi dog they had raised together became a central focus of their divorce.

The family court helped the couple divide up joint assets, including property and vehicles quickly, as neither party had any objections. However, when it came to their pet dog, the court was surprised that both demanded full custody of the pet corgi.

Florida Pet Custody

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

Pets are becoming a recognized part of the family, some would argue they’re a modern couple’s new kids. About 15 years ago, states began to allow people to leave their estates to care for their pets. Recently, courts have gone so far as to award shared custody, visitation and even alimony payments to pet owners.

Florida doesn’t have pet custody or visitation laws. Florida courts are already overwhelmed with the supervision of custody, visitation, and support matters related to the protection of children.

Not all states have ruled out a visitation schedule for dogs like Florida. For instance, while Texas also views dogs as personal property, in one case a Texas court authorized visitation. A new California law changed the way pet custody is handled in divorce cases. The law gives judges the power to consider the care and the best interest of the pet when making decisions.

According to a recent survey of the American Academy of Matrimonial Lawyers, about 30% of attorneys have seen a decrease over the past three years in pet custody cases in front of a judge.

Over the last decade, the question of pet custody has become more prevalent, particularly when it involves a two-income couple with no children who shared responsibility for, and are both attached to, the pet.

Quzhou’s Corgi Custody Case

The woman, Xu, told the court that she deserved ownership of the corgi. She testified that not only did she buy the dog, but that she raised the corgi by herself. The corgi has become a part of her family and has been by her side ever since, she claimed.

In undermining the Husband’s custody request, she added that her ex-husband Li didn’t take responsibility for looking after the corgi. She described him as a workaholic, who in his spare time played video games.

Although Li acknowledged that he did not feed the animal as often as his ex-wife, or clean up after it, he said he often walked the dog and considered it to be his child.

The court accepted that the corgi was a joint asset in the marriage, but one which couldn’t be divided easily. Eventually, the couple reached an agreement that the corgi would live with the woman, while every month Li should pay alimony to her for taking care of the dog. If the animal became ill, they must share the dog’s medical expenses. Li was given legal visitation rights to the corgi.

After the story was reported, it caused widespread online conversation about the fate of pets in a divorce. One person commented: “A pet is a part of the family, it’s understandable the divorcing couple wanted to fight for it.” Another said: “Now that more couples give up on having children, keeping pets as kids will probably rise.”

Data showed that in 2021 the number of pet owners in China had reached 68.44 million. In the U.S. roughly 70 percent of households own a pet, with dogs being the most numerous pet and salt water fish coming in last.

The South China Morning Post article is here.

 

Florida Grandparent Visitation Bill

Posted by Ron Kauffman on

Good news for Florida grandparents. The Florida House recently passed a visitation bill with profound meaning for Florida grandparents who have become estranged from their grandchildren after a tragedy. A companion bill, SB 1408, is awaiting a final vote on the Senate calendar.

Grandparent Visitation

Markel Act in the House

Currently in Florida, a grandparent can only be awarded visitation rights with their grandchildren under extremely limited circumstances, such as when a child’s parents are both deceased, missing, or in a permanent vegetative state.

However, when only one parent is deceased, missing, or in a permanent vegetative state, the other parent must have been convicted of a felony or a violent offense in order for a grandparent to be able to petition for visitation.

Additionally, a court would have to find that the grandparent has established a prima facie case that the surviving parent is unfit or poses a danger of significant harm to the child to be entitled to visitation. If that burden is not met, the court must dismiss the grandparent’s petition.

HB 1119 dramatically changes the law of grandparent visitation in Florida. It expands the ability for a grandparent to petition for visitation rights of his or her grandchild in certain narrow circumstances.
The bill does this by changing Florida Statutes to create a rebuttable presumption for granting reasonable visitation with the petitioning grandparent or step-grandparent under certain circumstances.

If a court finds that one parent of a child has been held criminally or civilly liable for the death of the other parent of the child, a rebuttable presumption arises that the grandparent who is the parent of the child’s deceased parent is entitled to reasonable visitation with the grandchild.

The effort behind the bill, informally referred to as “The Markel Act” was inspired in part by the 2014 murder of FSU law professor Dan Markel, who was hunted down and shot in the head by a hitman shortly after dropping Dan dropped his two sons off at preschool.

Prosecutors have publicly identified Markel’s ex-wife, Wendi Adelson, as an alleged “co-conspirator” to the murder, along with her mother and brother. Law enforcement says Adelson’s motive was to relocate to South Florida amid custody battles with Markel. While Adelson family members have not been arrested yet, three others have — the hitman, who was found guilty and sentenced to life; his accomplice, who pleaded guilty and confessed who had hired them; and their intermediary, who faces a retrial in May.

The bill passed the House with a vote of 112-3.

Florida Grandparent Visitation

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

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

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

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

Not too long ago, the Florida Supreme Court held that under the federal Parental Kidnapping Prevention Act any custody determination or visitation determination – including grandparent rights – are protected and enforceable under the PKPA. And, to the extent that the PKPA conflicts with Florida law, the PKPA controls under the supremacy clause of the U.S. Constitution because it is a federal law.

Senate Grandparent Visitation

The Senate companion bill unanimously cleared its committees and heads next to the Senate Floor. Both bills have bipartisan support. Specifically, the Senate Bill creates a presumption that a court may award a grandparent reasonable visitation with a grandchild in cases where the court has found that one parent has been held criminally or civilly liable for the death of the other parent of the grandchild unless not in the child’s best interest.

For five years, while the wheels of justice turned, Markel’s parents, Ruth and Phil, were kept from contact with their grandsons. As Ruth commented:

“We have profound gratitude for the Florida House, in particular Speaker Chris Sprowls, Rep. Jackie Toledo, and the other co-sponsors, for their vision and leadership. There’s nothing more important to us than leaving a record of how deeply we’ve tried to reconnect with our grandsons. Out of our tragedy, we hope to create something meaningful for other families to visit their grandchildren. Today marks a powerful day in this journey.”

Toledo tried to downplay the impact on parent rights by commenting that the Senate was not looking at ways to dismantle the rights of parents but to correct the problem in law when one parent retains custody even when implicated in the death of their co-parent.

Justice for Dan, a grassroots group of friends and allies, praises Speaker Sprowls, the bill sponsors, and members for their action for what it deems a clear message: murder can’t be a solution to custody battles.

The Florida Politics article is here.

Equal Timesharing Bill Blowing through Tallahassee

Posted by Ron Kauffman on

The winds of change are blowing as the latest equal timesharing bill, CS/HB 1395, moves through Tallahassee. Many parents, lawyers, psychologists and other experts wonder whether Florida will start requiring equal timesharing in all child custody cases.

Equal Timesharing

Typhoon Timesharing

It seems as if each new Florida legislative season has turned into a new hurricane season, dropping invasive lobbyists into Tallahassee to change our native, home-grown child custody and alimony laws.

Not surprisingly, once again the equal timesharing bill is hidden inside an alimony reform bill. Regarding alimony, Florida currently recognizes five main types of alimony: temporary, bridge-the-gap, rehabilitative, durational, and permanent.

In determining the type, amount, duration, and later modification or termination of an alimony award, the court has broad discretion but may only award alimony after initially determining that one spouse needs alimony and the other spouse is able to pay alimony.

For alimony purposes, this year’s House Bill increases presumptions relating to the length of a marriage, changes the types of alimony available, prohibits an award of alimony if the payor has met certain requirements for retirement before filing for divorce and prohibits an award of permanent alimony.

But few people – other than the experts and lawyers studying the bill – know that the alimony reform bill also creates a presumption that equal timesharing is in the best interest of a minor child. If passed, House Bill 1395, would codify into law a presumption of 50/50 timesharing between divorced parents. While this sounds fair, it poses a real risk to children.

Florida Timesharing

I’ve written on the legislative efforts to change to an equal timesharing state before. Historically, Florida courts have consistently ruled that a parent’s desire and right to the companionship, care, custody, and management of his or her children is an important interest that warrants deference and, absent a powerful countervailing interest, protection.

Florida law provides broad guidelines to assist courts in determining parenting and time-sharing of children based on the best interests of the child standard. It has been the public policy of Florida that each child has frequent and continuing contact with both parents after separation or divorce, and to encourage parents to share the rights and responsibilities, and joys, of childrearing.

To meet that state policy, there has not been a presumption for or against the father or mother of the child or for or against any specific timesharing schedule when creating or modifying the parenting plan of the child, and no presumption in favor of a specific time-sharing schedule when the parties are unable to agree.

Just as each divorce is unique, and is treated in a unique way, each timesharing schedule for a family is treated in a unique way for that family. By taking each case individually, you have a better chance of creating a parenting plan that best fits the children involved.

Winds of Change?

But now Florida is facing a Category 5 change. House Bill 1395 amends Florida law to create a presumption that equal time-sharing (commonly referred to as “50/50 time-sharing”) is in the best interests of a minor child common to both parties unless otherwise agreed to by the parties. This would be for every case, instead of the case-by-case basis looking into the details of what is best for kids.

This year’s legislative session started on January 11, 2022 and is scheduled to wrap up on March 11, 2022. The bill provides an effective date of July 1, 2022.

The Tallahassee Democrat article is here.

Florida Alimony Reform 2021

Posted by Ron Kauffman on

Florida Alimony Reform 2021 is back in the news as the Legislature once again takes up how alimony and child sharing are handled in family law courtrooms. This year’s bills in the House and Senate have many changes, including the elimination of permanent alimony and an equal timesharing presumption.

The Sausage Factory

As  WLRN reports:

“I was married for 17 years to a man who quit working the minute we were married. I supported about seven different businesses that he ran into the ground. He abused drugs and alcohol. And he was abusive to me and our two children.”

Shultz says she was ordered by the court to pay her ex-husband $5,250 per month for the rest of her life. I cannot retire because I have alimony payments to pay every 30 days,” Shultz says. House Bill 1559 would also allow payments to end when the person providing the alimony reaches full retirement age as determined by the U.S. Social Security Administration—with exceptions.

Under existing case law, someone paying alimony can apply to have their alimony adjusted or terminated upon reaching the normal retirement age for their job or profession.

Florida Alimony

I’ve written about subject of alimony in Florida before. In every Florida dissolution of marriage case, the court can grant alimony to either party – husband or wife.

Not many people realize there are several types of alimony in Florida: temporary, bridge-the-gap, rehabilitative, durational, and permanent. In determining the type, amount, duration, and later modification or termination of an alimony award, the court has broad discretion but may only award alimony after initially determining that one spouse needs alimony and the other spouse is able to pay alimony.

If a court awards or denies an alimony request, it must consider enumerated factors and may consider the adultery of either spouse or any other factor it finds necessary to achieve equity and justice between the parties. An alimony award may be modified or terminated when the circumstances or financial ability of either party changes, including changes due to a receiving spouse’s supportive relationship or a paying spouse’s retirement.

Florida courts can also award a combination of alimony types in a divorce. Alimony awards are normally paid in periodic payments, but sometimes the payments can be in a lump sum or both lump sum and periodic payments.

In determining whether to award alimony or not, the court has to first make a determination as to whether a wife or a husband, has an actual need for alimony, and whether the other party has the ability to pay alimony.

Typically, courts consider any type of earned income or compensation — that is, income resulting from employment or other efforts — along with recurring passive income, such as dividends on your investments, in establishing the amount of support you will be responsible to pay.

In Florida, once a court determines there is a need and the income available to pay alimony – sometimes referred to as the ability to pay alimony – it has to decide the proper type and amount of alimony. In doing so, the court considers several factors, some of which can include:

  • The standard of living established during the marriage.
  • The duration of the marriage.
  • The age and the physical and emotional condition of each party.
  • The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.

Other factors, such as the earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate are also considered.

No Time Like Equal Time?

A very strange component of the Florida alimony bills is that the bills deal with parenting time with children. The proposed bills would create a presumption that 50/50 time-sharing of children would be in the child’s best interest — meaning both parents would have equal time with their child.

Right now, timesharing is analyzed in detail. The existing law requires judges to evaluate several different factors in determining an appropriate parenting plan for a child. Rep. Emily Slosberg (D-Delray Beach) questioned the change during a meeting on the bill:

“So, under your bill, if there is hypothetically one parent who is drug-addicted and another parent who has really been caring for the child—under your bill, this would create a presumption that 50/50 is in the best interest in the child.”

“Absolutely not,” bill sponsor Miami Republican Rep. Anthony Rodriguez (R-Miami) said in response. “I mean, you walk into the courtroom, and there is a presumption of 50/50 time-sharing, but, in that scenario, specifically in the scenario representative, it is obvious that the judge would not grant 50/50 time-sharing to a drug-addicted parent.”

“There is a clear nexus between alimony and time-sharing, and we believe that when you walk into the courtroom, the focus of the divorce should be the children. And there should be an equal time-sharing of such, and if for whatever reason that should not be the case, then the judge can decide that,” Rodriguez says. Rodriguez says his bill allows for the presumption of 50/50 time-sharing to be rebutted by a judge.

Obvious? Philip Schipani is a family law attorney who represents clients who have special needs children. He says judges don’t always have a full understanding of a family’s situation. He worries the presumption created under Rodriguez’s bill will put an extra burden on his clients.

“And right now, I have a pending case—a child with special needs—this presumption if they put a 50/50—the father hasn’t seen the child for four years. Not only [does] the child [have] severe special needs, the husband’s a recovering drug addict who hasn’t seen the child in years. So, then you slap this presumption on, and then I have an extra burden to overcome. Not only do I have to explain the child’s condition, explain the drug addiction, I have to overcome this presumption as well,” Schipani says.

The WLRN article is here.

 

Free Speech and Child Custody in Massachusetts

Posted by Ron Kauffman on

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.

 

Swinging into Child Custody Co-parenting

Posted by Ron Kauffman on

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

Spiderman coparenting

Spiderman Meets Divorce Court

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

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

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

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

Florida Co-Parenting

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

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

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

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

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

Spidey Sense

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

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

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

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

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

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

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

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

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

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

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

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

The People article is here.