Tag: Religious Divorce

Comity and an International Divorce in Texas

Posted by Ron Kauffman on

International divorce cases may require recognition here, or comity, as one couple from Pakistan discovered. After a woman received nothing from her husband’s talaq divorce in Pakistan, she then sought a property division in a Texas divorce from her real estate developer husband. Is the Texas family court required to recognize the Pakistan divorce decree as valid?

Comity International Divorce

A Scam in Pakistan?

The former wife, Azhar, and her former husband, Choudhri, were married in Pakistan. At that time, Azhar lived in Pakistan and her husband lived in Texas. After obtaining her visa, she traveled to Houston where they lived together as husband and wife.

The Wife returned to Pakistan to renew her visa. Reports claim she was tricked into going back to Pakistan so her husband could take advantage of Sharia Law to divorce her. While she was in Pakistan, he initiated a talaq divorce, the results of which meant she got nothing from the marriage.

Texas Hold‘em

The Wife filed for divorce in Texas, and the Husband tried to dismiss the case. Following the hearing, the trial court denied the Husband’s motion to dismiss based on comity, finding:

“enforcement of the certificate of divorce issued in Pakistan would be contrary to Texas public policy and would, if enforced, violate the Wife’s basic right to due process.”

Around the same time, the former wife was also challenging the Pakistan divorce in the Pakistan courts. At first, the Pakistan trial court ruled in the former wife’s favor, declaring their divorce void. But the former husband appealed, and the Pakistani appellate court reversed and dismissed the wife’s case. On appeal to the Supreme Court of Pakistan, the high court affirmed.

Back in Texas, the trial court entered a new order recognizing the Pakistan Supreme Court’s judgment that the divorce was valid. The Texas court dismissed the wife’s divorce action, and dismissed her property division claim with prejudice.

The wife appealed, arguing the trial court should not have granted comity to the Pakistani divorce because she was not personally served, and was only provided notice five days prior to the divorce by publication in a local circular.

In some cases, American courts may defer to the sovereignty of foreign nations according to principles of international comity. But U.S. states are not always required to give full faith and credit to foreign country judgments. For instance, a U.S. court will often decline to recognize a foreign divorce judgment if it was obtained without due process.

On appeal the Texas court found the original order dismissing the Texas divorce was made prior to the Pakistan Supreme Court’s involvement. The second Texas trial order recognizing the Pakistan Supreme Court was deserving of comity, and the Texas appellate court affirmed.

The opinion is available from MK Family Law here.

Divorce, Family Law and Constitutional Rights

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Today is September 17th: Constitution Day. For anyone involved in divorce and family law cases, your Constitutional rights are always at risk. In New Jersey that was recently proved when a family judge restrained a woman from posting a video about her husband’s refusal to give her a religious divorce.

Divorce Constitution

Gotta Get a Get

On September 17, 1787, the delegates to the Constitutional Convention met for the last time to sign the document they created. Written 236 years ago, the U.S. Constitution is still the country’s most important legal instrument – even impacting people going through a simple divorce today.

For many Americans, religion plays an important part of finalizing their divorce. All three major monotheistic religions require a religious divorce to remarry within the faith. Without a religious divorce, a second marriage will not be recognized.

Agunot refers to Jewish women who are separated from their husbands but unable to obtain a legal Jewish divorce, leaving them barred from remarriage under Judaism’s adultery laws. One New Jersey woman denied a “Get” – a jewish divorce – decided to take matters into her own hands. She posted a video accusing her estranged husband of improperly withholding a get, and asking community members to “press” her husband to give the get.

After the video was made, the husband obtained a restraining order based on a domestic violence complaint alleging harassment. He testified that he received numerous phone calls from unknown numbers, a photograph of himself identifying him as a “get refuser” and calling on others to “tell him to free his wife.” Additionally, he was adamant that he was not a get refuser.

The trial judge found that the communication was “invasive” of the husband’s privacy, holding:

“one cannot hide behind the First Amendment when that communication is invasive of the recipient’s privacy.”

The trial judge entered a temporary restraining order against the Wife’s video and she appealed.

Florida and Constitutional Rights

I’ve written about the intersection of the U.S. Constitution and divorce cases before. This Constitution Day it is important to understand that family courts have a lot of power which can impact your constitutional rights.

Unlike the U.S. Constitution, the Florida Constitution has an express right of privacy clause in it. Florida courts have interpreted the Florida Constitution to afford even greater privacy rights than those in the U.S. Constitution.

Accordingly, Florida courts have to carefully balance a parent’s constitutional right against the state’s interests. When the matter involves religious beliefs, family courts generally do not make decisions in favor of a specific religion over the objection of the other parent. The court should also avoid interference with the right of a parent to practice their own religion and avoid imposing an obligation to enforce the religious beliefs of the other parent.

First Amendment Gets Going

On appeal, the New Jersey Superior Court Appellate Division held that the wife’s video was constitutionally protected speech. The appellate court vacated the temporary restraining order holding: a “general history” of violence was insufficient to vitiate First Amendment protections.

The video, whether viewed on its own or in the context in which it was disseminated, does not fall outside the First Amendment’s protection. Recall that the trial judge had concluded that the video was not protected by the First Amendment because members of the Jewish community would respond violently to plaintiff being identified as a get refuser.

However, the trial judge’s reliance on an unspecified general history of violent treatment to which get refusers were subjected was insufficient to render the wife’s video a true threat or an imminent danger to satisfy the incitement requirement.

To qualify as incitement and lose First Amendment protection a communication must be both “directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action.”

The New Jersey Superior Court Appellate Division opinion is here.

Interfaith Marriage and Divorce

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Increasingly, couples are in interfaith marriages, meaning each person is from a different religion. Along with societal disapproval, are there any other possible problems a couple in an interfaith marriage face that could lead to divorce? A recent Indian case sheds some light.

Interfaith Marriage

Gujarat

India is a country of many religions. In the western state of Gujarat, roughly 88.6 percent of the population is Hindu and about 9.7 percent are Muslim. Recently, a division bench of the Gujarat High Court granted relief to an interfaith couple – but then went on to caution the wife’s parents not to “misbehave” due to their opposition to the interfaith marriage.

The order prohibiting in-law misbehavior concerns the marriage of a 26-year-old Muslim man to a 20-year-old Hindu woman under the Special Marriage Act in Ahmedabad in May 2021. The Special Marriage Act is a law that allows solemnization of marriages irrespective of the religion of the couple.

The Act also requires parties to give a 30-day public notice of their intention to marry. The public notice is displayed at the office of the marriage officer, inviting potential objections to the marriage.

However, the woman’s parents were opposed to the marriage and, the couple decided that the woman will stay at her parental home until their approval.

According to the court petition, the woman was subjected to physical and mental cruelty by her father over the marriage. Then, in December 2021, the woman left her home willingly and started residing at her matrimonial house.

The court also directed the woman’s parents to share the books and clothes of the woman that are in the parents’ possession as the woman is “desirous of continuing her studies,” while disposing the petition.

Interfaith Marriages

I have written about religion and divorce before. Marrying within the faith is still common in the United States, with nearly seven-in-ten married people (69%) saying that their spouse shares their religion, according to a recent Pew Research Center survey.

A comparison of recent and older marriages shows that having a spouse of the same religion may be less important to many Americans today than it was decades ago.

The Pew Religious Landscape Study found that almost four-in-ten Americans (39%) who have married since 2010 have a spouse who is in a different religious group. By contrast, only 19% of those who wed before 1960 report being in a religious intermarriage.

Some research suggested that marriages between members of the same religious group may be more durable than intermarriages. If this is true, the rise in religious intermarriage over time may not be as pronounced as it appears, since the Religious Landscape Study measures only marriages intact today.

Other surveys looking at divorce rates did not find an overall lower – higher divorce rate among interfaith couples. But did find that certain combinations made it much more likely that the marriage would end in divorce.

The most likely interfaith marriages to end in divorce were Evangelicals married to someone of no faith. This may simply be the case that the further apart the religions, the more likely divorce may be.

Interfaith India

The woman’s father, however, then filed a “false complaint” with the Danilimda police station alleging that his daughter left the house with cash and ornaments.

In response, the police visited the house of the husband and “started harassing the family members of the petitioner (husband) in order to get custody” of his wife. To “avoid unnecessary harassment by the police”, the couple left for Ajmer in Rajasthan.

The police soon brought the couple back to Danilimda police station and “illegally and arbitrarily” took the woman in custody. Following production before a magistrate court, was housed at Nari Vikas Gruh in Paldi.

The magistrate court subsequently handed over custody of the woman to her parents. Soon, represented by advocate Rafik Lokhandwala, the petitioner-husband moved the Gujarat HC with a habeas corpus petition.

The Indian Express article is here.

Is A Telephone Marriage Valid

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After a Husband challenged the validity of his Bangladesh telephone marriage, many brides should be concerned whether their religious marriage is valid. A family judge in Ohio, presiding over the parties’ divorce, recently ruled that their Bangladesh telephone marriage was valid. But, how would an appellate court view it?

Marriage Valid

A Fairy Tale Telephone Wedding

On August 22, 2005, a couple got married during a telephone marriage ceremony, which was conducted over a speaker phone.

At the time of the wedding, husband resided in the United States, wife resided in Bangladesh, and both were citizens of Bangladesh. The Husband traveled to New York and was with friends and relatives during the ceremony. Wife was in Bangladesh with friends and family members and husband’s father.

Also present in Bangladesh was a person who solemnized the marriage and identified himself as an assistant marriage registrar, and a community leader who appeared to sign the marriage register on husband’s behalf as his “pleader.”

Pictures of the marriage ceremony were provided and witnesses said the solemnization was according to Sharia law.

On July 15, 2019, after wife filed for divorce in Ohio, the Husband countered arguing that their marriage was invalid under Bangladesh law. The Husband reasoned that because the marriage was unlawfully registered in violation of the Muslim Marriages & Divorces Registration Act, the marriage was invalid and his Wife was not entitled to spousal support or property rights.

But the Wife countered that under Bangladesh law, an invalid registration would not render an otherwise valid marriage invalid. That’s because it is purely a civil contract, and further, that neither writing nor any religious ceremony is essential to validate a marriage under Bangladesh law.

The trial court disagreed with the Husband, and entered summary judgment and then a divorce. The Husband appealed.

Florida Marriage Validity

I’ve written about marriage validity, and the intersection between religious marriage and civil marriage before. First off, in order to be validly married in Florida, you need a license from the government.

Getting a marriage license may seem like a trivial obligation, but if you want your religious marriage recognized in court, you must get a marriage license.

There is a fee for getting a marriage license, and that fee is reduced for attending pre-marital counseling. The license is valid for 60 days. The officiant at the ceremony must certify that the marriage was solemnized.

The certified marriage license must be returned to the clerk or an issuing judge within 10 days, and the clerk or judge is required to keep a correct record of certified marriage licenses.

Florida courts have repeatedly warned people that they cannot depart from the requirement of the Florida Statutes to have a license, otherwise the courts would be creating common-law marriages, which are not recognized here.

If you only have the religious marriage, but do not file for a marriage license, your marriage will not likely be recognized, and you cannot divorce, and cannot make claims for equitable distribution, or ask a court for alimony.

The Mesh in Bangladesh

The Husband appealed after the trial court concluded his Nikah Nama marriage was valid. He argued on appeal that the trial court erred because of the lack of a validly executed contract and an invalid registration under Bangladesh law.

The appellate court found that the parties’ marriage in Bangladesh was valid. Wife demonstrated that their telephone marriage met the essentials of a valid Mohammedan and Bangladeshi marriage, and that registration of the marriage is not an essential element in order to establish the validity of a marriage.

The evidence also showed that the parties had a prolonged and relatively continuous cohabitation for over 12-years, held themselves out as husband and wife, they consummated the marriage, and they had a child together.

In a concurrence, one judge expressed his incredulity with the Husband’s position that there was no legal marriage. After all, the Husband entered into this country for his spouse, filed joint U.S. tax returns with her, and also took advantage of his employer’s generosity by getting a tuition benefit for the spouse of an employee.

The appellate opinion is here.

 

Enforcing an Islamic Mahr Prenuptial Agreement

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The extent of a court enforcing a religious prenuptial agreement, like the Islamic Mahr agreement, is big news. A family judge in Florida recently ruled that an Islamic Mahr agreement was not only enforceable, but waived equitable distribution and temporary support. How did an appellate court view the ruling?

Mahr Prenuptial Agreement

The Mahr from Thar

For many religious couples, in lieu of a secular prenuptial agreement, they sign a religious contract. Catholics have prenuptial agreements and Jews have a ketubah. In this recent Florida divorce, the parties signed an Islamic premarital agreement called a “Mahr” or “Mehr” agreement.

Although the agreement was entered in Bangladesh, neither party claimed it should be interpreted under Bangladeshi or Sharia law.

A Mahr is a contract to pay money – frequently expressed in gold coins – promised by a groom to his bride in the event of death or divorce. The amount is agreed to before the marriage and negotiated between the parents of the couple.

This Mahr agreement was two pages long, and had the explicit promise by Former Husband to pay Former Wife a total of 15 Bangladeshi lac Taka upon marriage. Five lac Taka were to be paid up front on marriage, and ten more in the event of a divorce.

At the time of the trial, 10 lac Taka was worth about $12,000. The Bangladeshi Taka has not been appreciating against the dollar lately.

At trial, the Former Wife argued that the ten lac Taka Mahr agreement was only the minimum amount she could ask the Former Husband for. In the Former Wife’s view, the Mehr did not waive her right to equitable distribution and temporary alimony.

The Former Husband, on the other hand, argued that the ten lac Taka under the Mahr agreement was the maximum she could get. The purpose of the Mahr was to guarantee an agreed sum to her. By agreeing to a guaranteed payment in advance, she waived her rights to ask for anything else.

The family law judge found that the Former Wife had built up some equity in the jointly titled, marital home, but then awarded it to the Former Husband. Then the court ordered Former Wife to vacate the house.

Relying on the Mahr agreement, the judge also denied Former Wife temporary alimony, limiting her to the ten lac Taka lump sum.

The Former Wife appealed.

Florida Prenuptial Agreements

I’ve written about religious prenuptial agreements, such as the Mahr, before. Prenuptial agreements are not just for celebrities. Anyone who brings personal or business assets into their marriage can benefit from a prenuptial agreement.

Prenups are also important to have in place before a couple starts investing in businesses, buying properties, and accumulating mountains of debt.

But just having a prenup is not enough. Prenups are frequently challenged in court. Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement is enforceable.

Florida also adopted the Uniform Premarital Agreement Act. The UPAA requires that all premarital agreements be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself.

Because prenuptial agreements may be challenged in court, Florida courts must consider things such as fraud, duress, coercion, in addition to the unfairness of the agreement, and whether there was any financial disclosure.

Florida the Sunshine Religious State?

Many people don’t realize that religious agreements can be enforceable in Florida. However, there is a limitation, only a religious agreement’s secular terms are enforceable as a contractual obligation. That is true even if the secular terms were agreed to in a religious ceremony.

Here, the parties disputed how the terms of the Mahr agreement should be interpreted. Former Husband argued the Mahr agreement was meant to protect a spouse in the event of a divorce, so the Mahr should be read as the entirety of Former Wife’s recovery.

Former Wife argued the lack of waiver language in the Mahr agreement –stating that the couple intended to waive equitable distribution and alimony – meant she was entitled to ask a Florida court for relief in addition to the Mahr.

The appellate court reversed, holding that parties to a prenuptial agreement — religious or secular — are allowed to contract away their traditional marital rights, but they must do so in a way that comports with Florida law.

To contract away marital rights, a prenuptial agreement’s plain language must unambiguously express a desire to waive equitable distribution. Additionally, any agreement that waives or limits the right to temporary support and attorney’s fees violates Florida public policy.

Because the Mahr did not expressly bar Former Wife from seeking a property division and alimony, it couldn’t overcome Florida’s strong public policy in favor of equitable distribution and temporary alimony.

The opinion is here.

 

Court Orders Covid Vaccination of Children

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In a child custody case in Kentucky, a family court orders the COVID vaccination of two small children. Last week a Kentucky appellate court decided the important issue of whether the family court judge was legally entitled to require the COVID vaccinations for the children over one parent’s objection.

Kentyck covid

The COVID Vaccine Derby

Recently Canada resolved the issue over whether an unvaccinated parent can actually lose their child custody rights for refusing to vaccinate their child. This week’s issue is slightly different, can the court require a vaccination over another parent’s strongly held religious views and objection.

In the Kentucky case, the parties had divorced in 2018. They shared joint custody and equal timesharing of their two children, aged eight and six. Throughout their marriage, and divorce, the parents always declined the required immunizations for their children on religious grounds.

In fact, there was proof that they had signed affidavits in New York and Georgia declining vaccinations for their children on religious grounds and when they divorced, they signed Kentucky’s form for declining immunizations on religious grounds.

However, two years later, the father had a change of heart. On June 30, 2020, he filed a motion for an order to allow him to vaccinate the children. The Mother objected, and a hearing was held in Family Court to resolve the question.

The Father testified that he originally agreed not to vaccinate the children because he was leaving for deployment with the military and was unable to meet with the pediatrician. He thought there was an understanding the parties would just delay the vaccines.

But, after he finished his military service, he began discussions with Mother regarding vaccinations for the children. Father stated that when he signed the vaccination declination affidavit he had doubts about the development of certain vaccines by use of aborted fetal cells.

Now he believes the use of aborted fetal cells is so far removed from the process of developing vaccines that his concerns no longer exist. He believes it is appropriate to vaccinate the children. He wants to follow the advice of the children’s pediatrician to vaccinate.

The Mother vehemently objected saying that doing so violates her firmly held religious convictions opposing the use of aborted fetal cells in the manufacture and design of the vaccines. Rather, she prefers using medication and antibiotics to treat her children. She argues there was an understanding between her and Father that the children should not be vaccinated and produced multiple documents the parties signed to that effect.

Florida Child Vaccinations

I’ve written about the injection of vaccines into Florida child custody cases before. In Florida, the prevailing standard for determining “custody” is a concept call shared parental responsibility, or sole parental responsibility. Generally, shared parental responsibility is a relationship ordered by a court in which both parents retain their full parental rights and responsibilities.

Under shared parental responsibility, parents are required to confer with each other and jointly make major decisions affecting the welfare of their child. In Florida, shared parental responsibility is the preferred relationship between parents when a marriage or a relationship ends. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

Issues relating to a child’s physical health and medical treatment, including the decision to vaccinate, are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court.

At the trial, the test applied is the best interests of the child. Determining the best interests of a child is no longer entirely subjective. Instead, the decision is based on an evaluation of certain factors affecting the welfare and interests of the child and the circumstances of the child’s family.

In Florida, a court can carve out an exception to shared parental responsibility, giving one parent “ultimate authority” to make decisions, such as the responsibility for deciding on vaccinations.

The decision to vaccinate raises interesting family law issues. It is important to know what your rights and responsibilities are in Florida and other states.

Kentucky Fried Covid

The family court trial judge ruled it was in the children’s best interest to be vaccinated. The judge reasoned that, on balance, the children’s health and welfare outweighed the religious beliefs of one parent.

The court ordered that the parties consult with the pediatrician to craft a “catch-up” schedule bringing the children current on vaccinations and other immunizations, or, if the parties were able, to agree to alternative vaccines that could potentially be utilized that do not use aborted fetal cells in their development and design.

In affirming the trial judge’s ruling on appeal, the appellate court noted the overriding principle that the best interest of each child must be served by the family court’s decision.

The mother’s argument did not articulate any detriment or risk of harm to her children by not vaccinating them. The father simply argued her religious views should not take precedence over his.

The court ruled that when there is an impasse between a Mother and Father a family court properly can ‘break the tie’. Equal decision-making power is not required for joint custody, and parties or trial courts are free to vest greater authority in one parent even under a joint custody arrangement.

The family court heard from both the Mother and Father, and found that it would be in the children’s best interest to be vaccinated in accordance with their pediatrician’s recommendations and Centers for Disease Control and Prevention (CDC) guidelines.

The Kentucky appellate opinion is here.

Divorce Causes in India

Posted by Ron Kauffman on

Divorce can have many causes, but in India there is a bizarre case going on in which a Muslim woman has sought divorce in an Islamic court from her husband on the grounds that he does not fight with her enough.

India Divorce

The Spice of Life

The unidentified woman in the Sambhal district of Uttar Pradesh has sought a divorce from her husband after only 18-months of marital bliss. The woman approached the Sharia court in Sambhal to seek a divorce, leaving the court puzzled.

Why was the court so confused?

The chief complaint from the woman is that her husband loves her too much and does not fight with her. The woman claimed that her husband’s love was ‘suffocating’ her.

“He does not shout at me and neither has he upset me on any issue. He even cooks for me and also helps me in performing household chores.”

She further said, “Whenever I make a mistake, he always forgives me for that. I wanted to argue with him. I do not need a life where the husband agrees to anything.”

The Sharia court cleric, as expected, rejected her plea for divorce, terming it as frivolous. When the Sharia court refused to grant her divorce, the woman took up the matter with the local panchayat (the local self-government in villages in rural India), which also expressed its inability to decide the issue.

Florida No Fault Divorce

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 husband is always forgiving of your mistakes, or worse, very agreeable to anything you want, you don’t need to allege that as a grounds for divorce.

I’ve written about divorce and infidelity issues before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your husband’s nice demeanor. 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.

Florida abolished fault as grounds for filing a divorce. Gone are the days when you had to prove adultery, desertion or annoying behavior in a government enforced quarantine.

The only ground you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.” Additionally, the mental incapacity of one of the parties, where the party was adjudged incapacitated for the prior three year, is another avenue.

What do you do if you are trapped in quarantine with someone you want to separate from?

To avoid problems during a quarantine, you may have to force yourself to work together – however difficult that may be.

Couples who are separating or separated already, and are parents, are being forced to work as a team and talk through problems that are making forced quarantine impossible. Reassure each other that you will make it through and work together.

The key if you’re living together is to strike the right balance between having quality intimate time together, or if you’re at the brink of your relationship, giving each other some space.

Divorce Bollywood Style?

Back in India meanwhile, the nice husband has gone on record and stated that he loved his wife dearly and always wanted to keep her happy. He also asked the Sharia Court cleric to reject the divorce plea. Of course.

The court has now asked the couple to resolve the matter mutually.

The Tribune India article is here.

 

Child Custody and the Constitution and Some Good Coronavirus Information

Posted by Ron Kauffman on

With state and local officials entering shelter in place orders, many parents feel they are being deprived of their constitutional rights to child custody. What are a parent’s constitutional rights during a global emergency? There’s also some good coronavirus information.

Constituion Child Custody

There is no instruction book for a pandemic

Happy belated Easter to everyone . . . except residents of Louisville, Kentucky! The home of Muhammad Ali, the Kentucky Derby, and Kentucky Fried Chicken is in the news. That’s because on Holy Thursday, Louisville’s mayor, Greg Fischer, criminalized the communal celebration of Easter.

Our nation faces a public health emergency caused by the exponential spread of COVID-19. This has led many state and local officials to order increasingly tighter restrictions to promote social distancing and prevent further spread of COVID-19.

Can the state go too far? One federal court thinks so. Last week Louisville’s mayor said, it was “with a heavy heart” that he was banning religious services, even if congregants remain in their cars during the service. A Louisville church then filed an emergency motion in federal court to enjoin the mayor, and won.

The mayor noted that it’s not really practical or safe to accommodate drive-up church services taking place but drive-through liquor stores are A-OK!

Notwithstanding the exemptions of some drive-through places, on Holy Thursday, the Mayor threatened church members and pastors if they hold a drive-in Easter service.

The federal judge, noting American history on religious bigotry, said the pilgrims fled religious persecution, slave owners flogged slaves for attending prayer meetings, mobs drove the Latter-Day Saints to Utah; hatred against Catholics motivated the Blaine Amendment, and Harvard University created a quota system to limit Jewish students.

The judge then found the Mayor’s decision to be stunning and “beyond all reason,” unconstitutional.

Florida Child Custody and the Constitution

Like religions, the constitution protects parental rights too. I have written about the intersection of the constitution and marital law before. The United States Supreme Court has concluded that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.

Florida courts have long recognized this fundamental parental right. The basic proposition is that parents have a legal right to enjoy the custody, fellowship and companionship of their offspring. This is a rule older than the common law itself.

But the parents’ rights are not absolute, as the state has parens patriae authority to ensure that children receive reasonable medical treatment which is necessary for the preservation of life.

So, in Florida the ultimate welfare of the child itself is controlling. While the parent’s interest in maintaining parental ties is essential, the child’s entitlement to an environment free of harm, physical and emotional violence at the hands of parents and caretakers and for medical treatment necessary for the preservation of life.

Because Florida has a compelling interest in protecting all its citizens—especially its youth—against the clear threat of abuse, neglect and death, the constitutional rights can give way.

Kentucky Fried Liberty

Back in Louisville, the court found the city order was not “neutral” between religious and non-religious conduct because it targeted religious worship by prohibiting drive-in church services, but not drive-through liquor stores.

The court noted that the city was pursuing a compelling interest of the highest order through its efforts to contain the current pandemic, but its actions were not even close to being “narrowly tailored to advance that interest.

The court also found that the church was committed to practicing social distancing in accordance with CDC guidelines. Cars will park six feet apart and all congregants will remain in their cars with windows no more than half open for the entirety of the service.” Its pastor and a videographer will be the only people outside cars, and they will be at a distance from the cars.

There is no instruction book for a pandemic. The threat evolves. Experts reevaluate. And government officials make the best calls they can, based on the best information they have. You may not agree with the court’s reasons, but the judge saw his role to explain, to teach, and to persuade.

Good Coronavirus News

Speaking of the constitution, to stem the spread of COVID-19, many cities have passed executive orders requiring people to cover their mouth and nose when going out.

Face masks (surgical or homemade) are now being required in public, such as when going to drive-through liquor stores. But do homemade masks work? The science with different types of masks is not conclusive, but this graphic is good information anyway:

COVID 19

In theory, all masks may prevent some sprays of virus-laden fluids from entering your nose and mouth (inward protection). They are also a reminder not to touch your face. And, if you’re sick, they may help keep some aerosols inside (outward protection), to protect people around you.

The U.S. District Court order is here.

 

Will the Philippines Legalize Divorce

Posted by Ron Kauffman on

We sometimes take it for granted that a toxic marriage, which can destroy your life and the lives of your children, can be amicably resolved here. That’s not true everywhere. There’s a new bill to legalize divorce in the Philippines — the only remaining state aside from Vatican City that has no divorce law.

Legalize Divorce

‘Thrilla’ in Manila

Many in the Philippines have been advocating for the passage of a divorce bill.

“Divorce is not a monster that will destroy marriages and wreck marital relationships. Let us be clear about this — the monsters that lead to the demise of a marriage are infidelity, abuse, financial problems, lack of intimacy and communication, and inequality.”

Despite this development, religious groups, pro-family advocates who were present in the hearing, and even fellow lawmakers expressed their disapproval of the measure.

Florida Divorce

I’ve written about attempts to criminalize divorce before. Divorce, of course, is legal in the United States. However, traditionally it was made difficult by having to prove “fault.” This required spouses to prove either adultery; abandonment for a certain length of time; prison confinement; a spouse is physically unable to have sexual intercourse; or that the other spouse has inflicted emotional or physical pain (cruelty).

Florida abolished fault as grounds for filing a divorce. The only ground you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.”

After divorce became legal, the concept of proving fault gave way to no-fault laws 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. “Reduced” the need, not eliminated the need.

Dragged into the 21st Century

A Philippine church official has expressed surprise over the speedy acceptance of the bill in that would legalize divorce.

“I was surprised at the speed at which the committee accepted the bill. I was expecting exhaustive deliberations and discussions would be conducted on the measure.”

Bishop Arturo Bastes of Sorsogon described the acceptance of the proposed measure as alarming. Earlier, the Catholic Council of the Laity of the Philippines issued a statement expressing opposition to the divorce bill.

The group said the Catechism of the Catholic Church clearly provides that divorce is “immoral” because it introduces disorder into the family and into society.

The CNN article is here.

 

Social Media and International Child Custody

Posted by Ron Kauffman on

An American woman living in Saudi Arabia has been punished in her international child custody divorce. During the divorce trial, her Saudi ex-husband was able to introduce exhibits from her social media account into evidence. The social media evidence proved fatal to her custody case.

ocial media international child custody

Desert Justice

Though she succeeded with the divorce, her custody battle appeared to reach a dead end after a Saudi judge awarded custody of their daughter Zeina to the husband’s mother, who lives with him, despite video evidence Ms. Vierra submitted to the court that she said showed her ex-husband doing drugs and verbally abusing her in front of their daughter.

“It’s like 10,000 times worse here because so much is at risk for women when they go to court. I genuinely thought that there would still be justice served here, and I kind of put everything on that.”

Saudi courts prioritize ensuring that children are raised in accordance with Islam. According to court documents, the judge accepted Ms. Vierra’s ex-husband’s arguments that she was unfit to raise Zeina because she was a Westerner, and ran a yoga studio.

Social Media and International Child Custody

Divorce trials usually require the introduction of sensitive and personal evidence. For example, it is common to hire private investigators to film spouses, or use forensic accountants to hunt for strange credit card charges.

Sometimes though, the evidence falls in your lap. Facebook and other social media sites are often filled with very personal information which is increasingly being used in divorce trials. You may have heard of some examples:

  • A Husband posts his status as single and childless on Facebook while seeking primary custody of his children.
  • A mother is accused of never attending her kids’ school events because of her online gaming addiction. Evidence subpoenaed from World of Warcraft tracks her on-line with her boyfriend at the time when she was supposed to be with the children.
  • A husband denies he has any anger management issues, but posts on Facebook; “If you have the balls to get in my face, I’ll kick your ass into submission.”
  • A mom denies in court that she ever smokes marijuana, but then uploads photos of herself smoking pot on Facebook.

Is the evidence admissible? And if so, how do you prove the evidence is real and not maliciously put there? The Florida Bar Commentator published an article I wrote about using Facebook evidence at trial.

The article discusses the evidentiary potential of social media sites, and the peculiar challenges of authenticating materials from the internet. Social media websites like Facebook have had an astronomical growth worldwide, and are showing up in divorce trials.

The article suggests some of the benefits and obstacles in gathering and using Facebook and other social media evidence at trial. The article also reviews the then leading national cases on social media websites, and outlines when it is necessary to use computer forensic firms and other sources to ensure that the evidence is properly admitted.

Your Desert Kingdom Divorce

The status of women in Saudi Arabia is changing. Many women now enjoy new reforms in the law which allow women to drive, and even to a certain degree, vote. The election allowing it was for municipal councils with few powers, but the reform is a milestone for many women.

But the dramatic changes have not touched the most fundamental restriction on Saudi women, a guardianship system that gives men control over many critical parts of their wives.

The guardianship system’s rules extend to women who marry Saudis, like Ms. Vierra. Even after she divorced her husband last year, Ms. Vierra’s ex-husband remains her guardian. Wielding his guardianship powers, he prevented her from going home to see her family at Christmas and let her legal residency expire, which left her stuck, unable to access her bank account or leave Saudi Arabia.

During the divorce trial, he told the court that Ms. Vierra, did not speak Arabic well, and that she was an atheist. He also submitted photos of her in a bikini, in yoga pants . . . with her hair uncovered! This social media evidence of Ms. Vierra wearing forbidden yoga pants, in a country that requires women to wear loose abayas in public, was devastating at the divorce trial.

The court accepted his testimony at face value, she said, while hers was legally worthless unless she could bring in male witnesses to back her up. She tried to counter with videos of him that she said showed him rolling a joint to smoke hashish, talking on the phone about his marijuana use and screaming at Ms. Vierra, all with Zeina in the room. Though he acknowledged his drug use, he accused her in court of giving him the drugs and of forcing him to say he was an atheist, both of which Ms. Vierra denies.

In the end, the judge found both parents unfit to raise Zeina, awarding custody instead to the husband’s mother. But Ms. Vierra did not find this comforting; she said her ex-husband’s sister had testified that their mother had hit them and emotionally abused them as children.

“This is not just my story — there’s much worse. It’s hard to believe stuff like this can happen.”

The Independent article is here.