Tag: Paternity

Presumption of Paternity is Big in Japan

Posted by Ron Kauffman on

In family law, the presumption of paternity is one of the strongest in Florida. Japan is about to change its 19th-century law about the paternity. The change in the law of paternity for children born after divorce will help Japanese children facing difficulties getting healthcare and education.

Paternity Japan

Spirited Away

Under a Japanese 1898 Civil Code that’s still in force, a child born to a woman within 300 days of divorce is considered to be that of her former husband, even if she has remarried.

Many women opt not to register their children rather than comply with the regulation, especially in cases of domestic abuse. The country’s practice of registering its citizens under household units has hampered attempts by campaigners to gain the right for married couples to retain separate names, as well as to introduce same-sex marriage.

Japan consistently lags other developed countries in terms of gender equality. It was ranked 116th out of 146 countries in the annual Global Gender Gap Report released by the World Economic Forum in July.

Japan is also one of 32 countries that maintain discriminatory restrictions on remarriage for women after divorce, according to the Organization for Economic Co-operation and Development.

According to a lawyer who succeeded in getting the remarriage ban for women shortened to 100 days from six months in a 2015 Supreme Court ruling, the amendment also indicates a belated shift toward prioritizing the rights of children.

Japan’s Cabinet approved draft legislation Friday to scrap a rule that has prevented the new husband of a woman who has remarried from assuming paternity over a child born within some 10 months of the woman’s divorce from her previous partner.

Florida Paternity Presumption

I have written about Florida family law matters, including paternity changes, before. In Florida, the law presumes that the husband of the biological mother of a child is the child’s legal father. This presumption is one of the strongest rebuttable presumptions known to law, and is based on the child’s interest in legitimacy and the public policy of protecting the welfare of the child.

Because of the strength of this presumption in Florida, many courts have held that a person claiming to be a “putative” father does not have the right to seek to establish paternity of a child who was born into an intact marriage if the married woman and her husband object.

In some courts, the presumption of legitimacy of a child is so strong, it may never be rebutted. The Florida Supreme Court, however, has reaffirmed that the presumption of legitimacy afforded to a child born within an intact marriage is exactly that: a presumption. And the presumption of legitimacy may be rebutted in certain, rare circumstances.

Big in Japan

The change in the law of Japan is aimed at addressing a problem in which some children of divorced women have been left off family registers to avoid former husbands being recognized as fathers. This has resulted in difficulties in children accessing health, education, and other services.

Under what would be the first change to the century-old Civil Code provisions regarding paternity and marriage, a rule banning women from remarrying within 100 days of a divorce, long considered discriminatory, is also set to be scrapped.

A Justice Ministry survey found about 70 percent of 793 individuals not included in family registers as of August this year had mothers who did not submit birth notifications because of the current legal paternity rule.

Many women, in addition to those who have fled from domestic violence, have opted not to submit notifications of the birth of their child with their current partners in order to avoid having their former husbands recognized as the legal father.

The Cabinet of Prime Minister Fumio Kishida also gave the nod to giving mothers and children the right to file for court arbitration with regard to paternity disputes. At present, former husbands can deny paternity over children born within 300 days of a divorce.

The period for filing for arbitration will be set at within three years of knowledge about a birth. Under the current arbitration system, which has been limited to former husbands seeking to deny paternity, the period was set at one year.

The revisions also include deleting the parental right to punish children, while clearly stating that physical punishment and verbal and physical actions that harm a child’s healthy development are not permissible.

Registration and paternity rules are particularly important in Japan, where birth out of wedlock is rare and widely frowned-upon. About 2% of children are born to unmarried parents, while the average across OECD countries is 41%.

The Japan Times article is here.

Divorce More Likely for Stay At Home Moms

Posted by Ron Kauffman on

Is divorce more likely for stay at home moms? One divorce lawyer who received 1.7 million views talked about the top professions women should avoid when marrying a man. Now she is back advising people on the top jobs men should avoid when marrying a woman.

Stay at Home Mon Divorce

Again with Supply Chain?

More scientifically, in a Forbes article a while ago, the career site Zippia had reviewed Census Bureau data to figure out which jobs and industries showed the highest divorce rates for those 30 and younger.

Military jobs put the biggest strain on marriages, topping the list with a 30% divorce rate. Surprisingly, or not, rounding out the top jobs predicting divorce – all of which hovered in the 14% to 18% range – were:

  1. Supply Chain Logisticians
  2. Automotive service technicians and mechanics; and
  3. Chemical technicians

But this recent video by a divorce lawyer about stay at home moms has been getting way more attention – with over 4.1 million views of people wanting to know what profession a man should avoid in their spouse.

“The most common profession that I see in the female parties in my divorces, and this is over 13 years of cases,” she says, before nervously revealing the answer, is a stay-at-home mom.”

Being a stay-at-home parent is not easy, and many people argue that it actually should be treated as a profession where people should be paid for raising and taking care of society’s future.

Florida No Fault Divorce

I’ve written about the causes of divorce before. The official term for divorce in Florida is “dissolution of marriage”, and you don’t need fault as a ground for divorce. Florida abolished fault as a ground for divorce. So, whether your Wife is working in an office, or worse, staying at home raising the children, you don’t need to allege that as grounds for divorce.

The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your spouse’s diaper changing and cooking. Instead, you just need to state under oath that your marriage is “irretrievably broken.”

Before the no-fault divorce era, people who wanted to get divorce either had to reach agreement in advance with the other spouse that the marriage was over, or throw mud at each other and prove wrongdoing like adultery or abuse.

No-fault laws were the result of trying to change the way divorces played out in court. No fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.

What if you work remotely?

According to this, thoroughly unscientific study by one divorce lawyer with millions of views, there are many reasons why a stay-at-home mom might have one of the highest divorce rates.

“Number one: when you’re divorcing a stay-at-home mom, they are paralyzed with fear, and rightfully so, because their whole life is going to change.”

The second reason, she reveals, is simply an observation she’s made in the past and her own opinion, but relates to the first reason and that is that it’s easier for the pair to grow apart.

“The husband starts feeling like an ATM, and the wife becomes completely focused on the children.”

However, when looking at actual data by industry, there are some surprising findings. For one, the often stated claim that half of marriages end in divorce does not really pan out.

When looking broadly by industry, military marriages hovered at around a 15% divorce rate, and the other 24 industries with reported divorce rates were less than 10%. The legal, science and entertainment fields were among those at the bottom of the list, with divorce rates of about 4% or less.

In other studies, people have looked at the causes. One Kansas State University study, for example, found that arguments about money were the top predictor of divorce among both men and women — even higher than arguments about children, and staying at home.

That is why it is important that money conversations remain a priority. Schedule talks like you schedule doctors’ checkups, several times a year. And start by making sure you’re both on the same page.

The Your Tango article is here.

Divorce and Paternity

Posted by Ron Kauffman on

Divorce and paternity are in the news after the NBA’s Minnesota Timberwolves star Malik Beasley has decided to question his son’s paternity during his divorce from his model wife, Montana Yao.

disestablishment paternity

Technical Foul

Beasley, 24, is contesting the paternity of his two year old son, Makai, who was born in March 2019, according to court documents obtained by Page Six on Wednesday.

A paternity test was conducted, but the results were unknown leading up to Beasley and Yao’s March 29 court date.

The Timberwolves player’s attorney, Steven A. Hanley, told Us Weekly that the test was “taken last week.” While the results are pending, a court granted Yao’s request for $6,500 per month in child support, but a judge denied Yao’s request for $5,300 per month in spousal maintenance and for him to pay $20,000 for her attorney’s fees.

Florida Disestablishment of Paternity

I’ve written on paternity and disestablishment of paternity before. Paternity refers to a man who has the rights and responsibilities of a parent, regardless of whether he is the biological father or not.

Through legal paternity, the father is responsible for the child’s upbringing, has a parental relationship with the child, and has an obligation to support the child.

In Florida, there are a few ways to determine paternity, including marriage (such as when the mother and father are married at the time of the birth or Court order that determines legal paternity paperwork. For example, the father voluntarily signs the child’s birth certificate or affidavit of paternity.

You can also disestablish paternity in Florida to avoid these responsibilities. A father needs to demonstrate proof that he is not the father of the child in order to disestablish paternity in Florida.

For example, an affidavit signed by the Father explaining that newly discovered evidence regarding paternity has come to his attention since the time that legal paternity was first established. The evidence must have been discovered after the finding of legal paternity. It cannot have been known prior.

Another important factor to include is the result of a DNA test showing that the legal father is probably not the biological father of the child, or an additional sworn statement stating that he was not able to obtain a DNA sample from the child. The father can also request the court to order the DNA test.

The father’s child support payments also have to be current, or at least, substantially complied with and making child support payments on time. In the event there are any past-due payments owed, the father’s affidavit has to state why the payments are past due.

Finally, a court has to determine that the legal father has not adopted the child. The child cannot have been conceived by artificial insemination while the legal father and mother were married. The legal father must not have prevented the biological father from asserting his rights. Also, the child must have been under 18 years old when the petition for disestablishment of paternity was filed.

However, even if a father properly files a petition for disestablishment and follows all the necessary steps in the statute, a judge can still deny the petition.

Double Dribble

Beasley and Yao were married on March 20, 2020 but Yao filed for divorce on Dec. 8 of the same year shortly after cuddly pics surfaced of Beasley holding hands with Larsa Pippen.

Yao, 22, claimed earlier this month that Beasley kicked her and their son out of their joint home. She alleged on social media that the duo was bouncing around “hotels and Airbnb’s even moving states” until her parents agreed to help them.

The model also denied she cheated on Beasley, who began dating Pippen while they were still married. Pippen, 46, insisted that she met Beasley after he was separated from Yao, but photos of them in Miami suggest otherwise.

“It had nothing to do with me, so I wasn’t thinking anything about it,” Pippen said in February. “If you spent a minute Googling their situation, it wasn’t the ideal situation way before me.”

The article is here.

Caring is Creepy

Posted by Ron Kauffman on

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

caring is creepy

Gone for Good

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

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

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

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

Santiago appealed.

Florida Stalking Injunctions

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

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

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

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

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

New Slang

The appellate court held that Florida authorizes injunctions against stalking.

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

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

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

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

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

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

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

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

The opinion is here.

 

Who’s Your Daddy? Florida’s New Paternity Law

Posted by Ron Kauffman on

If it is a wise child that knows its own father, the Florida Supreme Court just created a new paternity law last week to help children know their true fathers. The court settled whether a biological father is prohibited from establishing his parental rights to his child if the child was born to a married woman.

Not Your Father’s Paternity Law

Perkins is the biological father of his daughter. Perkins and the child’s mother, Simmonds, engaged in a three-year relationship. Unknown to Perkins, his girlfriend was already married to another man.

When Perkins – the biological father – wanted to assert his child custody rights over his daughter, Simmonds and her husband, Ferguson, objected. Ferguson – the legal father – asserted his status as the child’s legal father– by virtue of his marriage to Simmonds – to block Perkins’ rights over his daughter.

Some interesting facts about the case:

  • Perkins was at the hospital for the child’s birth. Ferguson was not.
  • Simmonds declined to have Ferguson’s name listed as on the birth certificate. Simmonds gave the child Perkins’s last name and raised the child with Perkins.
  • Perkins and Simmonds lived together with the child.
  • Perkins has taken the child to doctor’s visits and enrolled the child in day care. Perkins regularly and voluntarily paid child support to Simmonds for the child.
  • The child knows Perkins as “daddy.”

So what’s the problem?

The problem in this case is that after Perkins filed a petition to establish paternity Simmonds moved to dismiss it, saying Perkins can’t establish paternity because of the common law presumption of legitimacy. That presumption is one of the strongest in Florida law.

Florida Paternity Law

I’ve written about paternity issues before. Sadly, for Perkins, after an evidentiary hearing, the trial judge ruled that it was bound by precedent to dismiss his petition.

In Florida, a putative father had no right to seek to establish paternity of a child who was born into an intact marriage, when the married woman and her husband object.

Although the trial judge held an evidentiary hearing and found that the facts strongly indicate that allowing Perkins to have “some involvement in the child’s life” would be in the child’s best interests, the trial court ultimately concluded that it was constrained by Fourth District precedent to dismiss the petition as a matter of law.

The Father of All Custody Conflicts

There’s been a conflict among Florida courts over this issue. Florida law presumes that the husband of the biological mother of a child is the child’s legal father.

This presumption is one of the strongest rebuttable presumptions known to law and is based on the child’s interest in legitimacy and the public policy of protecting the welfare of the child.

In Florida, many courts have held that a biological father has no right to seek to establish paternity of a child who was born into an intact marriage when the married woman and her husband object.

Some courts in Florida have gone so far as to suggest that the presumption of legitimacy may never be rebutted. While others have held that the presumption of legitimacy may be rebutted in certain, rare circumstances.

Twinkle in One’s Father’s Eye: New Paternity Law

The Supreme Court resolved the conflict and determined that the presumption of legitimacy does not create an absolute bar to a biological father’s right to seek to establish his paternity when the biological father has “manifested a substantial and continuing concern” for the welfare of the child.

The presumption of legitimacy is overcome when there is a “clear and compelling reason based primarily on the child’s best interests.”

So, for Mr. Perkins, the presumption of legitimacy has been found to be rebuttable by a biological father. Evidence that the mother’s husband has abused, abandoned, or neglected the child – although relevant – is not required to establish that it would be in the child’s best interests to recognize the biological father as the legal father.

The Supreme Court opinion is available here.