Tag: Interstate custody

Interstate Divorces and Foreign Judgments

Interstate divorces can become a serious constitutional problem when you are enforcing foreign judgments. We recently won an important constitutional victory on appeal after a Florida divorce court refused to enforce a Missouri foreign judgment.

Interstate Divorce

Gateway to a United Country

A couple married in Missouri. Then they asked to borrow money from the Husband’s mother to buy a marital home in Missouri. The mother-in-law agreed to lend them the money for the down payment after the couple agreed to repay her in full.

The couple then asked that the Mother-in-law pay their mortgage payments and lend them even more money to renovate their new home they bought, with the same arrangement that they would repay her from the sale of their previous home.

They didn’t pay back the mother-in-law. Instead, they moved to Florida and defaulted.

The Mother-in-law sued them, and won a final judgment awarding her money from on the unpaid loan in a Missouri Circuit Court.

The parties then filed for divorce in Florida. The mother-in law was concerned her judgment would never be repaid, so she intervened in their divorce as a foreign judgment creditor to enforce her Missouri final judgment.

The Florida divorce court allowed her to intervene and enforce the Missouri judgment, but entered a new divorce final judgment slashing the mother-in-law’s Missouri judgment in half so the couple didn’t have to pay her back what they owed.

The trial court’s actions violated the Full Faith and Credit Clause of the United States Constitution, a constitutional clause which helps make us one country, not 50 independent countries.

Florida Interstate Divorce Issues

I’ve written and spoken about interstate divorce issues before. The typical interstate problems occur in cases in which two parents reside in one state, like Missouri for instance, then one or more of the parents and the children move across state lines to Florida, for instance.

Interstate problems can include enforcing foreign custody orders, enforcing or modifying family support orders (like alimony and child support), or enforcing foreign money judgments.

To help with confusion between different laws in different American states, the Uniform Law Commission is tasked with drafting laws on various subjects that attempt to bring uniformity across American state lines.

With respect to family law, different American states had adopted different approaches to issues related to interstate custody, interstate alimony, and child support. The results were that different states had conflicting resolutions to the same problems.

To seek harmony in this area, the Uniform Law Commission promulgated the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA) and Uniform Interstate Family Support Act (the UIFSA), which Florida and almost all U.S. states passed into law.

A major problem arises when one state’s judgment conflicts with Florida’s public policy. For example, grandparent visitation is an area of law in which Florida does not really recognize a grandparent’s rights, but many other states do.

A few years ago, the Florida Supreme Court the Florida Supreme Court held that Florida is not allowed to elevate its own public policy over the policy behind a sister state’s judgment.

Accordingly, a Florida divorce court cannot refuse to enforce a Missouri judgment for money damages if one happened to be at issue in a Florida divorce. But that’s exactly what happened recently in a divorce court here.

Sunshine State Meets the Show Me State

After the Florida divorce court’s ruling, we asked an appellate court in Florida to reverse what the divorce court had done. On appeal, a panel of judges reviewed the case.

We explained that the Full Faith and Credit Clause of the United States Constitution creates a constitutional duty that U.S. states must honor the laws and judgments of the other sister states.

That is an important aspect of American federalism because it changes the various U.S. states from being independent foreign countries, and making them integral parts of a single nation.

This form of federalism has traditionally meant that one state in the United States may not modify or alter the judgment of a sister state (excluding child support and custody cases which can be modified under very limited circumstances).

In our case, no one disputed the validity of the Missouri judgment. Everyone participated in a full trial on the merits in Missouri. In reversing, the appellate court held that a Florida divorce court was prevented from inquiring into the merits of the cause of action or the logic or consistency of the Missouri court’s decision.

Because the mother-in-law appropriately intervened in the divorce action and asserted her right to enforce the Missouri judgment, the divorce court did not have discretion to alter or reduce the Missouri judgment or it constituted a violation of the Full Faith and Credit Clause of the U.S. Constitution.

The appellate opinion is here.

 

Can Working Parents Get Child Custody over a Stay Home Parent and There’s Good Coronavirus Information

Roughly 18% percent of parents in America stay home to raise their children, and a majority of parents are working outside the home. Does working outside the home weaken your chances to be awarded child custody over the stay-at-home parent? A Michigan court just answered that question. There’s also some good coronavirus information.

Working Child Custody

Custody in the Mitten State

In a recent Michigan case, a family judge found that a child had an established custodial environment only with the mother, Sarah, largely because Sarah “was the stay at home mom while the parties were together” and the child “is with her the majority of the time.” The other mother, Bridget, had her timesharing reduced because she worked outside the home.

Bridget and Sarah married in April 2014. They had a child using Bridget’s egg fertilized with a sperm donor and implanted in Sarah. Bridget and Sarah agreed that Sarah would stay home to raise their child while Bridget worked as a canine officer with the Eastern Michigan University Police Department.

Bridget and Sarah’s relationship began to deteriorate after the child’s birth. Money was tight and Bridget claimed that Sarah rejected Bridget’s requests that she return to work. Sarah, on the other hand, accused Bridget of belittling her role as a stay-at-home parent.

Bridget worked overtime when possible and was sometimes required to travel for work events. Bridget’s absence put a strain on the relationship. Eventually, the couple’s arguments, suspicions, and verbal mistreatment of each other took its toll and Bridget filed for divorce.

Bridget testified that during their marriage, both she and Sarah served as “primary caretaker[s]”. Bridget asserted that she “picked [her] shift at work to make it so that [she] could have the most amount of hours with the child during the day as possible.

Ultimately, the court awarded sole legal and physical custody to Sarah, with “reasonable rights parenting time” to Bridget. The court considered the best-interest factors in favor of Sarah.

In the best interest analysis, the court expressed a decided preference for Sarah as the stay-at-home caretaker because Sarah “has closer parental and emotional ties to AB than does Bridget by virtue of being able to spend significantly more time with her.

Florida Child Custody

I’ve written about child custody before – most recently about problems with the outbreak of the coronavirus pandemic. Unlike Michigan for example, Florida does not use the term “custody” anymore, we have the parenting plan concept. For purposes of establishing a parenting plan, the best interest of the child is the primary consideration.

Similar to Michigan’s statute, in Florida, the best interests of the child are determined by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including the mental and physical health of the parents.

Some of those factors include similar language, The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity, and the demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.

Bingo Bango

The family court in Michigan held that changing primary physical custody to the working parent would destroy the established custodial environment with the non-working parent. Conversely reducing the working parent’s time sharing was not such a drastic change that it would destroy the established custodial environment.

The appeals court reversed, finding that the family judge erroneously weighed the best interest factors  in the stay at home parent’s favor by finding she “has closer parental and emotional ties to [AB] than does the working parent by virtue of being able to spend significantly more time with her.”

The court also reversed because the judge concluded the non-working parent will enable her to be far better able to provide her with love, affection and guidance than the working parent, who spends much of her days at work.

The fact that the parties agreed before conceiving that one parent would stay at home to raise the child while the other would financially support the family does not equate with one parent loving the child more or having more affection for the child.

Despite treating Bridget as a less viable parent because she chose to work outside the home, the court declined to credit Bridget for her ability and willingness to earn an income and provide health insurance for her child.

Good Coronavirus Information

The practice of quarantine began during the 14th century to protect coastal cities from the plague. Ships arriving in Venice from infected ports were required to sit at anchor for 40 days before landing. This practice, called quarantine, was derived from the Italian words quaranta giorni which mean 40 days.

After more than 40-days in quarantine, Florida and other states are ready to disembark and dip their toes into re-openings. Re-openings will happen mostly in stages in line with recommendations from many health experts and economists.

The big concern at this point is, as we creep back to normal, are which activities create the risk of a rebound?

Dr. Anthony Fauci estimated that the country is conducting approximately 1.5 million to 2 million Covid-19 tests per week, and it is likely the testing capacity could be doubled within the next several weeks.

Careful planning to manage the virus is crucial because it will likely still be one to two years before a coronavirus vaccine is developed and ready for large-scale production.

The Michigan appellate opinion is here.

 

Child Custody and Timesharing Problems, and Good News on Coronavirus

The need to quarantine has not stopped child custody and timesharing problems from surfacing. In fact, it aggravates these problems as parents grapple with sharing custody and protecting themselves and their children. The Supreme Court of Texas recently resolved one issue, and there is even more good news about the coronavirus.

Child Custody Problems

Solving Child Custody Problems is Big in Texas

The coronavirus outbreak has caused urgent disputes among divorced and separated parents over exchanging the children during school closures. This forces attorneys to file emergency motions.

Many parents following their agreements about exchanging their children during and after spring break discovered a problem: this year school never re-started after spring break, so when do you return the children?

I have been working remotely during the coronavirus crisis, and resolving these problems daily. I have also been fielding a lot of calls from clients and potential clients asking about whether they were going to get their children back from the other parent, and whether they should exchange the children as agreed and ordered.

Many states handle things differently. Recently, the Texas Supreme Court weighed in. The Texas Supreme Court settled the issue of when to exchange when there is no start to school after spring break in an emergency order of the pandemic, ruling:

“For purposes of determining a person’s right to possession of and access to a child under a court-ordered possession schedule, the original published school schedule shall control in all instances. Possession and access shall not be affected by the school’s closure that arises from an epidemic or pandemic, including what is commonly referred to as the COVID19 pandemic.”

Justice Debra Lehrmann said the court agreed on the solution during a teleconference to relieve a source of stress during the outbreak.

Florida Child Custody Problems

I’ve been involved in resolving and have written about child custody problems in Florida before. Here are a few tips for parents to lower or prevent your divorce or separation from ruining your holidays or draining your bank account:

Look at the timesharing schedule in your agreement or final judgment. Become familiar with exchanging children on specific holidays, dates and the times the kids are supposed to be with you, or the other parent.

Make your plans in advance and send a nicely worded confirmation email of the exchange schedule to the other parent to avoid disagreements early on.

Be flexible. Fighting during a time of great stress will only make matters worse, while fostering relationships with extended family is considered in the children’s best interest.

A little pre-planning and communication can save you a lot of emotional and financial expense. This is a national emergency and our children are exposed to the stress from those around them. Don’t make things worse. With that said, there is also . . .

Good News on Coronavirus

There is always good news, even during a pandemic.

  • The IRS has announced that the April 15, 2020 deadline for filing and payment of your individual income taxes has been extended to July 15, 2020.
  • Strangely, your second quarter estimated income tax payments are still due on June 15, 2020.
  • The Coronavirus Aid, Relief and Economic Security Act (CARES Act) passed. The last Senate version of the bill I read had a small business loan program allowing maximum loan amounts calculated as the lesser of the product of average total monthly payments by the applicant for payroll, mortgage payments, rent payments, and payments on any other debt obligations incurred during the 1 year period before the date on which the loan is made, or $10,000,000.
  • SCIENCE Magazine released an article it published on May 30, 1919 after the Spanish Flu pandemic about lessons learned. Very interesting reading throughout.
  • A potential universal flu vaccine has passed an important set of clinical trials.
  • A patient has been declared ‘cured’ of HIV – and it’s not even the first time, with no trace of infection in his blood 30 months after undergoing a specialized type of stem cell therapy.

The Supreme Court of Texas order is here.

 

An Interstate Custody Marriage Story

The new Netflix divorce drama, Marriage Story, is an excellent movie which has brought critics and audiences together – with divorce attorneys! Largely overlooked in the detail it deserves is the legal implications of Nicole and Charlie’s interstate child custody fight which develops when Nicole moves to California from New York with their son Henry.

interstate custody

Act 1: Whose Fault is It?

Nicole is the one who moves to Los Angeles with their son. She doesn’t have to – they are a New York family, despite her having been raised on the west coast. The movie makes a lot of their having married in Los Angeles and their son was born there, but for the past 10-years, they’ve lived and worked in New York.

The reason for Nicole’s relocation to Los Angeles is a job offer, she gets hired to be in a TV pilot. Job offers are a common source for needing to relocate interstate with a child. However, there is no indication that she can’t find acting work in New York. Surely there are other work opportunities she could have in New York, had she really looked.

Then she makes her husband’ efforts to see their son in Los Angeles difficult when he visits. She steered Charlie away from sleeping for the night on the day he’s arrived – even though he has no idea she filed for divorce. Worse yet, he’s served with divorce papers in her parent’s house. Then Halloween becomes a sad, lonely time.

Act 2: Interstate Custody

I’ve written and spoken about interstate custody cases before. Generally, when two parents reside in a state, like Florida for instance, Florida custody laws will apply. However, when one of the parents and the child move across state lines, you have an interstate custody problem.

That’s exactly the problem Charlie faced after Nicole moved with their son to California from New York. But which law applies? Historically, family law is a matter of state rather than federal law. So, you would look to state law in deciding an interstate case; not Federal law. As will be seen below, there are some conflicts with different state laws.

To help with confusion between different laws in different American states, the Uniform Law Commission is tasked with drafting laws on various subjects that attempt to bring uniformity across American state lines. With respect to family law, different American states had adopted different approaches to issues related to interstate custody, visitation, and time-sharing. The results were that different states had conflicting resolutions to the same problems.

To seek harmony in this area, the Uniform Law Commission promulgated the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA), which Florida and almost all U.S. states passed into law. The most fundamental aspect of the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction vis-a-vis the child.

That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let’s say New York for the Nicole and Charlie example. The ultimate determining factor in a New York case then, is what is the “home state” of the child. New York has initial jurisdiction to hear Nicole and Charlie’s case, for example, if New York was the Home State of their son on the date Nicole filed her case.

Alternatively, New York could possibly hear their case if New York was the Home State of the child within 6-months before Nicole filed her case, and their son was absent from New York, but one of the parents still lives in New York. This usually happens when a parent takes a child across state lines.

There is a good reason for the ‘home state’ approach under the UCCJEA, which has been adopted by most state laws. That is that Florida, California and New York – and the other states – all have a strong public policy interest in protecting children in their states.

Act 3: The Big Decision

Charlie does face a serious interstate child custody problem, and has a few weaknesses too. Charlie cheated and feeling guilty, allowed Nicole and their son to move to California for at least a year. We don’t know how long after Nicole moved to California she filed for divorce. Nicole has always done more of the childcare and has extended family in California – a luxury that Charlie doesn’t enjoy.

The stakes in the movie are extremely high for interstate parents facing a custody problem. The big issue is whether Charlie will need to move to Los Angeles to keep up regular contact with his son or be able to force Nicole to return their son to New York so she can timeshare there.

I won’t give a spoiler as to how their interstate child custody case is finally resolved. Instead, know that the movie does an amazing job of portraying the high stakes and anxiety involved in an interstate child custody divorce.

The new Netflix movie, Marriage Story, is great, and stars Scarlett Johansson, Adam Driver, Laura Dern, Alan Alda, Ray Liotta, Azhy Robertson, Julie Hagerty, Merritt Wever, and Wallace Shawn and basically follows a married couple going through a coast-to-coast divorce.

Highly recommended!

*Gage Skidmore photo credit

Strike!: Interstate Custody and Pro Sports

Chicago Cubs Ben “Zorilla” Zobrist and his wife, singer Julianna Zobrist, have each filed for divorce in separate states on the same day, according to court records. How is a court supposed to figure out which state you should file your divorce in is the place where interstate custody and pro sports collide.

Interstate Custody

Batter Up!

Ben Zobrist filed for legal separation Monday in Williamson County, Tenn., where the couple — married since December 2005 — keep an offseason home in a Nashville suburb.

But, Julianna Zobrist filed in Cook County, Illinois on the same Monday. Julianna, a 34-year-old Christian pop singer, did not provide a reason for seeking a divorce in her petition. She also recently deleted her Twitter account.

Zobrist is a baseball second baseman and outfielder for the Chicago Cubs. He is one of seven players in MLB history to have won back-to back World Series championships on different teams. But being on many teams in different states means that choosing jurisdiction isn’t always easy for professional athletes.

The Zorilla used to play for the Tampa Bay Devil Rays/Rays, his first MLB club and where he spent most of his career. Then he briefly for the Oakland Athletics and Kansas City Royals.

Interstate Custody

I’ve written about interstate custody cases before. Generally, when two parents reside in Florida, Florida custody laws will apply. However, when one of the parents and the child move across state lines, you have an interstate custody problem.

But which law applies? Historically, family law is a matter of state rather than federal law. So, you would look to the state law of Florida, for example, in deciding an interstate case; not Federal law. As will be seen below, there are some conflicts with different state laws.

For various reasons, people travel more. As a result, family law has to take on an interstate, and international component. Accordingly, the conflicts between states can be amplified.

To help with confusion between different laws in different American states, the Uniform Law Commission is tasked with drafting laws on various subjects that attempt to bring uniformity across American state lines.

With respect to family law, different American states had adopted different approaches to issues related to interstate custody, visitation, and time-sharing. The results were that different states had conflicting resolutions to the same problems.

To seek harmony in this area, the Uniform Law Commission promulgated the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA), which Florida and almost all U.S. states passed into law.

The UCCJEA: Initial Actions

The most fundamental aspect of the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction vis-a-vis the child.

That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let’s say Florida for this example.

The ultimate determining factor in a Florida case then, is what is the “home state” of the child.

There is a good reason for the ‘home state’ approach under the UCCJEA, which has been adopted by most state laws. That is that Florida – and the other states – all have a strong public policy interest in protecting children in their states.

Foul Ball!

According to the Tennessean, Ben Zobrist’s filing contends that his wife “has been guilty of inappropriate marital conduct which render further cohabitation impossible,” though the article didn’t elaborate.

“Husband is unsure if the marriage can be salvaged,” the filing says, according to the Tennessean.

When asked whether Julianna Zobrist would like to respond to her husband’s assertions, an assistant said, “Not at this time,” and added on behalf of her Chicago-based law firm, “We don’t have any information right now to release to the public.”

The Cubs granted Zobrist, 37, a leave of absence a week ago. Manager Joe Maddon, whose association with Zobrist dates to 2006 with the Rays, wasn’t sure when the valuable infielder-outfielder would return.

The Chicago Tribune article is here.

 

Residency for Divorce

Ireland is currently working on the wording of what the Irish electorate will be asked to vote on in the upcoming divorce referendum. Residency for divorce is an issue about the amount of time a person has to live in a state, and in some cases, live apart from their spouse, before they can file for divorce.

residency for divorce

Luck of the Irish

If the luck of the Irish holds out and the referendum is passed, the government would introduce primary legislation on the time period before you can get a divorce, rather than having it in the Constitution which must be put to a public vote when changes are proposed.

Under the current system, married couples need to have lived apart for at least four years during the previous five years. The new proposals would see that reduced to two years, with the Irish Legislature, the Oireachtas, providing the legislation for this.

The referendum is due to take place on 24 May, the same day as the local and European elections.

Florida Divorce Residency Requirement

Ireland is not alone in having a residency for divorce requirement before spouses can file a case. Most U.S. states for example, have some kind of a durational residency requirement for the plaintiff in a divorce and others add to that a requirement you live apart first.

I’ve written about things to consider when planning for divorce before. Residency for divorce is a very important jurisdictional requirement in every case.

Generally, the non-filing party need not be a resident in the state in order for the court to divorce the parties under the divisible divorce doctrine. The court’s personal jurisdiction over the non-filing spouse is necessary only if the court enters personal orders regarding the spouse.

The durational domicile or residency requirement goes to the heart of the court’s ability to divorce the parties, because the residency of a party to a divorce creates a relationship with the state to justify its exercise of power over the marriage.

What are some of the time limits in the United States? For example, Florida has a six-month requirement for residency before you can file for divorce here.

By contrast, Iowa has a one-year residency requirement for all spouses filing in the state. The same is true for Maryland, which requires that at least one spouse be a Maryland resident for at least one-year before filing for divorce. Maryland law also requires the couple to live apart for at least 12-months before filing for divorce.

The rule sounds easy enough, but failure to adhere to the rule may cause the court to enter a divorce decree without having the proper jurisdiction. In that event the divorce decree could be called into question.

The Irish Journal article is here.

 

Upcoming Speaking Engagement

I will be speaking at the prestigious Marital & Family Law Review Course in Orlando from January 25th to January 26th. I will be discussing interstate child custody, interstate family support, and The Hague Convention on international child abductions. The event is co-sponsored by the Florida Bar Family Law Section and the American Academy of Matrimonial Lawyers.

Speaking Engagement

Interstate Custody

Parents move from state to state for various reasons. It is a subject matter I have written and spoken about many times. Whether children are moved by parents wrongfully or not, moving your children creates interstate custody and support and problems.

The Uniform Child Custody Jurisdiction and Enforcement Act, and The Uniform Interstate Family Support Act, can be critical laws to know in those cases.

International Child Abductions

What happens if your children are wrongfully abducted or retained overseas? If that happens, you must become familiar with the Convention on the Civil Aspects of International Child Abduction, also known as The Hague Convention.

This international treaty exists to protect children from international abductions by requiring the prompt return to their habitual residence.

The Hague Convention applies only in jurisdictions that have signed the convention, and its reach is limited to children ages 16 and under. Essentially, The Hague Convention helps families more quickly revert back to the “status quo” child custody arrangement before an unlawful child abduction.

If your children are wrongfully taken out of the country or wrongfully retained after the time for returning them passed, the Hague Convention can help you get them back.

Interstate Family Support

The Uniform Interstate Family Support Act is one of the uniform acts drafted by the Uniform Law Commission. First developed in 1992, the UIFSA resolves interstate jurisdictional disputes about which states can properly establish and modify child support and spousal support orders.

The UIFSA also controls the issue of enforcement of family support obligations within the United States.

In 1996, Congress passed the Personal Responsibility and Work Opportunity Act, which required all U.S. states adopt UIFSA, or face loss of federal funding for child support enforcement.

Every U.S. state has adopted some version of UIFSA to resolve interstate disputes about support.

Certification Review

It is a privilege to be invited to speak on interstate custody and international child abductions at the annual Family Law Board Certification Review Seminar again.

The annual seminar is the largest, and most prestigious advanced family law course in the state. Last year’s audience included over 1,600 attorneys and judges from around the state.

The review course is co-presented by the Family Law Section of The Florida Bar, and the American Academy of Matrimonial Lawyers.

Registration information is available here.

 

Upcoming Speaking Engagement

I will be speaking at the Florida Bar Family Law Section and AAML’s, Marital & Family Law Review Course in Orlando on Friday, January 26th. I will be discussing interstate child custody, interstate family support, and The Hague Convention on international child abductions.

Interstate Custody

Parents move from state to state for various reasons. It is a matter I have often written about . Whether children are moved by parents wrongfully or not, moving creates interstate custody and child support and spousal support problems. The Uniform Child Custody Jurisdiction and Enforcement Act, and The Hague Convention on Child Abduction, can work together in those cases.

International Child Abductions

You should become familiar with the Convention on the Civil Aspects of International Child Abduction, also known as The Hague Convention. This international treaty exists to protect children from international abductions by requiring the prompt return to their habitual residence.

The Hague Convention applies only in jurisdictions that have signed the convention, and its reach is limited to children ages 16 and under. Essentially, The Hague Convention helps families more quickly revert back to the “status quo” child custody arrangement before an unlawful child abduction.

If your ex has taken your children out of the country against your will, the Hague Convention can help you get them back.

Interstate Family Support

The Uniform Interstate Family Support Act is one of the uniform acts drafted by the Uniform Law Commission. First developed in 1992, the UIFSA resolves interstate jurisdictional disputes about which states can properly establish and modify child support and spousal support orders.

The UIFSA also controls the issue of enforcement of family support obligations within the United States.

In 1996, Congress passed the Personal Responsibility and Work Opportunity Act, which required all U.S. states adopt UIFSA, or face loss of federal funding for child support enforcement.

Every U.S. state has adopted some version of UIFSA to resolve interstate disputes about support.

Certification Review

It is a privilege to be asked to address interstate custody and international child abductions at the annual Family Law Board Certification Seminar again.

The annual seminar is the largest, and most prestigious advanced family law course in the state. Last year’s audience included over 1,600 attorneys and judges from around the state.

The review course is co-presented by the Family Law Section of The Florida Bar, and the American Academy of Matrimonial Lawyers.

More information is available here.

 

Speaking Engagement

For readers who may be interested, I will be speaking at the prestigious Marital & Family Law Review Course in Orlando on Friday, January 26, 2018. I will be addressing the issues of interstate child custody, interstate support, and international child abductions under The Hague Convention.

The Review Course

The 2018 Marital & Family Law Review Course is considered the premier advanced, continuing education opportunity for marital and family law attorneys and judicial officers in Florida.

It is a privilege to be asked to address interstate custody and international child abductions at the annual Family Law Board Certification Seminar again. The seminar is the largest, and most prestigious advanced family law course in the state. Last year’s audience included 1,600+ attorneys and judges.

The review course is co-presented by the Family Law Section of The Florida Bar, and The American Academy of Matrimonial Lawyers.

Interstate Custody

I’ve written about interstate and international custody cases before. Generally, when two parents reside in Florida, Florida custody laws will apply. However, when one of the parents and the child move across state lines, you have an interstate custody problem.

But, which law applies? Historically, family law is a matter of state rather than federal law. So, you would look to the state law of Florida, for example, in deciding an interstate case; not Federal law.

For various reasons, people travel more. As a result, family law has to take on an interstate, and international component. Accordingly, the conflicts between states can be amplified.

To help with confusion between different laws in different American states, the Uniform Law Commission is tasked with drafting laws on various subjects that attempt to bring uniformity across American state lines.

With respect to family law, different American states had adopted different approaches to issues related to interstate custody, visitation, and time-sharing. The results were that different states had conflicting resolutions to the same problems.

To seek harmony in the area of interstate custody, the Uniform Law Commission promulgated the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA), which Florida and almost all U.S. states passed into law.

The UCCJEA: Initial Actions

The most fundamental aspect of interstate custody under the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction vis-a-vis the child.

That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let’s say Florida for this example.

The ultimate determining factor in a Florida case then, is what is the “home state” of the child.

There is a good reason for the ‘home state’ approach under the UCCJEA, which has been adopted by most state laws. That is that Florida – and the other states – all have a strong public policy interest in protecting children in their states.

You can register for the 2018 Marital & Family Law Review Course here.

 

Losing Custody through Parental Alienation

In Britain, parents can now lose child custody, and even be denied contact with their children, if they attempt to poison their children against the other parent under a new pilot program to stop parental alienation. What is parental alienation and why should you lose custody over it?

According to the London Independent, the groundbreaking initiative, being tried by the Children and Family Court Advisory and Support Service (Cafcass), is designed to tackle the problem officially known as “parental alienation” where one parent turns a child against the other so they do not want to see them.

In the UK, Cafcass represents children in family court cases to make sure that children’s voices are heard and decisions are taken in their best interests.

Cafcass is independent of the courts, social services, education and health authorities. It was established in 2001 to bring together the family court services previously provided by the Family Court Welfare Service, the Guardian ad Litem Service and the Children’s Division of the Official Solicitor’s Office. It is accountable to the Secretary of State at the Ministry of Justice.

Cafcass – which has been criticized for being slow to tackle the issue – said the problem is widespread and occurs in a substantial number of the 125,000 cases it deals with annually.

Florida Child Custody Modification

I’ve written about interstate and international child custody issues before, and how to modify child custody provisions.

The custody provision in a final judgment can be materially modified only if:

  • there are facts concerning the welfare of the child that the court did not know at the time the decree was entered, or
  • there has been a change in circumstances shown to have arisen since the decree.

To satisfy the substantial change of circumstances test, the party seeking modification must show both that the circumstances have substantially, materially changed since the original custody determination and that the child’s best interests justify changing custody.

Parental Alienation

Parental Alienation is a mental condition in which a child – usually one whose parents are engaged in a high-conflict separation or divorce – allies strongly with one parent and refuses without good cause to have a relationship with the other parent.

This process takes place when a parent or caregiver encourages the child’s rejection of the other parent.

Parental alienation is driven by the false belief that the rejected parent is evil, dangerous, or not worthy of affection.

When the phenomenon is properly recognized, the condition is preventable and treatable in many instances.

Parental alienation, if proved by competent, substantial evidence, can justify a request for a modification of a time-sharing provision in a final judgment.

Parental Alienation in Britain

Cafcass’s, Sarah Parsons, said: “We are increasingly recognizing that parental alienation is a feature of many of our cases and have realized that it’s absolutely vital that we take the initiative.

Our new approach is groundbreaking.

From spring 2018, Cafcass caseworkers will be issued with guidelines known as the “high conflict pathway” setting out steps social workers should take when dealing with suspected cases of parental alienation.

The pathway will spell out at what stage children should be removed from the parent responsible for the alienation and placed with the “target parent”.

A father who was the victim of alienation, speaking anonymously, told the Guardian:

I’ve lived through and witnessed the inexorable alienation of my older daughter over the past five years, which has culminated in complete loss of contact.

The Independent’s article on alienation is here.