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Same Sex, Common Law Marriages

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Florida deems common law marriages void. What about a common law marriage from another state? In many same-sex relationships, which were not legal until recently, that is now an issue.

Groundbreaking New Case

In South Carolina, Debra Parks wanted to be treated the same as anybody else. She wanted her relationship, which ended last year, to be considered a common-law marriage under South Carolina law. Parks is gay. But until 2014, same-sex marriage was illegal.

In a groundbreaking case for South Carolina, a Family Court judge has ruled that Parks and her former partner had a common-law marriage under state law. And the state must recognize that their common-law marriage has been legal for almost 30 years, the judge ruled.

The ruling means same-sex couples now have the same retroactive rights as heterosexual married couples, experts say. Those rights include alimony, health insurance, taxes, the division of property and others.

I’ve written about same-sex relationships before. The South Carolina ruling immediately becomes a legal precedent, and has the potential to impact thousands of people in same sex relationships because it backdates the period of effect to the beginning of the common-law marriage.

‘A rose by any other name would smell as sweet,’” the judge wrote. “The law established by the U.S. Supreme Court in Obergefell should be applied retroactively in South Carolina.”

Florida Common Law Marriages

South Carolina is one of eight states that recognize common law marriage. The case is important because same sex marriages were not recognized until 2014 and left an entire group of people “out in the cold” without the protections the law provides to heterosexual couples.

Florida law is different. No common-law marriage entered into after January 1, 1968, is valid in Florida.

The South Carolina case could create a conflict between Florida Statutes – which makes common law marriages in Florida void as of 1968, the Parks case, which recognizes the creation of same-sex, common law marriages in South Carolina.

The order states that Parks’ common law marriage is retroactive to the time when Parks divorced her husband while already living with her same sex partner. The larger question for interstate actions is whether Florida would give full faith and credit to the South Carolina judgment.

Interstate Problems

The generally established principle is that the validity of a marriage is determined by the law of the place where the marriage occurred. So, while Florida no longer recognizes common law marriages, nevertheless, it may to recognize the validity of common law marriages in other states.

Given the U.S. Supreme Court’s decision to recognize same sex marriage, everything else from the marriage follows including rights of the parties, including marital property, alimony, divorce, and anything else. The rights and duties of marriage now apply to same sex couples.

The South Carolina Herald article is here.

Scarlett Johansson’s Divorce & Interstate Custody

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Scarlett Johansson filed for divorce in New York this week, and is asking for custody of their daughter. Her husband, Romain Dauriac, also wants custody, but lives in France. This creates an interstate custody issue.

For many reasons, a new job, a new love interest, family, it is common for parents to move after separating. If they have children, they want to bring them too. If they want to live out of state or the country, that makes it an interstate custody case.

The Interstate Custody Problem

According to US Weekly, Scarlett’s husband Romain plans to fight for custody of their daughter, which could set up an ugly court battle. He’s French and his attorney states his client plans to move back to France:

He would like to move to France with his daughter and Ms. Johansson does a lot of traveling, it will be an interesting process.

I’ve written about interstate custody issues, and recently spoke on the subject. So, what laws govern, and where could Romain file for divorce and custody?

Interstate Custody Laws

Several laws govern where to file your interstate custody case. In a recent New York case, an appellate court had to reconcile two laws governing interstate custody: the UCCJEA and Hague Convention.

In the New York case, a husband, wife and child moved from Canada to New York. After about five months in New York, the mother took the child back to Canada without the father’s consent and she promptly filed for custody there.

The father filed his own custody action in New York, applied for the return of the child under the Hague Convention, and instituted a Hague Convention case in Canada.

The Canadian court ruled that the child had been “habitually resident” in New York on the day that she was taken back to Canada, and ordered that the mother return the child to New York.

The mother brought the child back to New York but asked New York to dismiss the New York case because New York was not the “home state” of the child under the UCCJEA.

The “home state” is generally defined under the UCCJEA as “the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding.

The mother claimed that the child had been in New York for only five months before being taken back to Canada.

The New York court determined that the Mother’s stay in Canada was only a “period of temporary absence”, and added it to the prior five months to constitute the required six-month period.

Additionally, the New York court noted that even if the six-month rule had not been satisfied, New York had initial custody jurisdiction because Canada declined the case.

The US Magazine article on the Scarlett Johansson divorce can be found here.

Madonna and Interstate Custody

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Madonna is locked in an interstate custody battle over her son, who is refusing to leave his father’s home in London, and return to her home in New York City. Sadly, these disputes happen more frequently as people become increasingly mobile.

Madonna’s interstate custody case is interesting on several levels, because it involves domestic (meaning American) family law and international family law issues.

The complex nature of the issues are why I have previously written about the education problems in Madonna’s interstate custody disputes.

Madonna and Guy Ritchie were divorced in 2008. They have a son together. A New York court judge ordered the son to return to Madonna in New York. The 15-year-old has been living with his father at his London home.

So, what happens if Guy ignores the New York court order? Madonna may be able to rely on various international and American statutes to help resolve their interstate custody dispute.

The Uniform Child Custody Jurisdiction and Enforcement Act

American courts are governed by the UCCJEA, a state law every U.S. State has adopted except for Massachusetts. The UCCJEA generally provides the basis for determining which state’s court should resolve custody disputes, and also governs the enforcement of other states’ custody and parenting time orders.

The UCCJEA sets out the rules for which state can establish a new custody order, enforce your rights under an existing order, or modify the terms of another state’s child custody decree. The UCCJEA also has rules for determining when a state can take Emergency Jurisdiction over an interstate custody case.

The Hague Convention

The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty the U.S. turned into a U.S. federal law. The Hague Convention provides remedies for a “left-behind” parent, like Madonna.

By filing a Hague petition for return in another signatory country, a left behind parent may be able to obtain the return of a wrongfully removed child to the country of the child’s habitual residence.

The Hague Convention seeks to deter abducting parent by eliminating their primary motivation for doing so: to “deprive the abduction parent’s actions of any practical or juridical consequences.”

So, when a child under 16 who was habitually residing in one signatory country is wrongfully removed to another Hague Convention signing country, the Hague Convention provides that the other country must: “order the return of the child forthwith” and “shall not decide on the merits of rights of custody.”

The Huffington Post article is here.

Speaking on Interstate & International Custody

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Interstate Custody on Friday, January 20, 2017.

I will be speaking next Friday at the Marital & Family Law Review Course in Orlando, Florida on interstate child custody, interstate family support, and the Hague Convention on international child abductions.

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Parents move from state to state for various reasons. It is a matter I have written about too. 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.

I am honored to have been selected to speak at the 2017 Marital & Family Law Review Course is considered the premier advanced, continuing education opportunity for marital and family law attorneys and judicial officers in Florida, and is co-presented by The Family Law Section of The Florida Bar, and The American Academy of Matrimonial Lawyers (AAML).

More information and registration is available here.

 

Upcoming Speaking Engagement

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Speeches on Wednesday, January 4, 2017.

For any readers who may be interested, I will be speaking at the Marital & Family Law Review Course in Orlando, Florida on Friday, January 27th, on interstate child custody, interstate family support, and Hague Convention child abductions.

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The 2016 Marital & Family Law Review Course is considered the premier advanced, continuing education opportunity for marital and family law attorneys and judicial officers in Florida, and is co-presented by the Family Law Section of The Florida Bar, and The American Academy of Matrimonial Lawyers (AAML).

More information and registration is available here.

Interstate Custody Hague and UCCJEA

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Interstate Custody on Monday, December 12, 2016.

Parents move from state to state. Sometimes, children are moved by parents wrongfully, creating interstate custody problems. The Uniform Child Custody Jurisdiction and Enforcement Act and the Hague Convention on Child Abduction can work together in those cases as a recent New York case shows.

In New York, an appellate court recently reconciled the UCCJEA and Hague in the interstate custody case of Krymko v. Krymko. A husband and wife and child moved from Canada to New York.

After about five months in New York, the mother took the child back to Canada without the father’s consent and she promptly filed for custody there.

The father filed his own custody action in New York, applied for the return of the child under the Hague Convention, and instituted a Hague Convention case in Canada.

The Canadian court ruled that the child had been “habitually resident” in New York on the day that she was taken back to Canada, and ordered that the mother return the child to New York.

The mother brought the child back to New York but asked New York to dismiss the New York case because New York was not the “home state” of the child under the UCCJEA.

I have written on custody issues before, and I will be speaking at the Marital & Family Law Review Course in January on the UCCJEA and the Hague. The Review Course is the premier advanced, continuing education opportunity for marital and family law attorneys in Florida.

The “home state” is generally defined under the UCCJEA as “the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding.

The mother claimed that the child had been in New York for only five months before being taken back to Canada.

The New York court held that, even if the time in New York was less than the required six months, the subsequent stay in Canada, was found by a Canadian court to be wrongful.

Accordingly, the stay in Canada would be deemed to be a “period of temporary absence” within the meaning of the UCCJEA, which should be added to the prior period of five months so as to constitute the required six-month period.

Additionally, the New York court noted that even if the six-month rule had not been satisfied, New York had initial custody jurisdiction because Canada declined the case.

The case illustrates the interplay between the UCCJEA and the Hague Convention when dealing with interstate custody issues.