Tag: Relocation

When Parent Relocation is Murder

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Parent relocations are stressful, but can they lead to murder? Years after a contentious Tallahassee divorce, the trial of the murderers of FSU law professor Dan Markel is underway. Many suspect he was murdered for contesting parent relocation.

Parental Relcation Murder

In Cold Blood

More than five years after his horrific murder, and after numerous delays and postponements, the trial of two of the alleged murderers of law professor Dan Markel got underway in Tallahassee this week.

Professor Markel was gunned down in his driveway after sending off his children for the final time. The trial of two of the alleged perpetrators, Sigfredo Garcia, one of the alleged gunmen, and Katherine Magbanua, the alleged go-between who set up the murder, began this week.

A third man formally accused in the plot — Luis Rivera — says he joined Garcia on the hit and agreed to split $100K with the other two. Rivera already took a plea and will be the star witness.

Unfortunately, Rivera can’t give police the one thing they don’t have: a case against the people who offered up the $100,000 payment he says the crew were promised. Police believe it’s the family of Markel’s ex-wife, Wendi Adelson, who now has custody of the couple’s children and has kept them cut off from their paternal grandparents.

Adelson divorced Markel by moving out of the house and leaving divorce papers on the bed while Markel was on a business trip. After Markel was killed, Adelson told police that her brother joked about hiring a hit man to kill him and she tearfully admitted that she suspected this was done on her behalf.

Miami area Defendant Katherine Magbanua is the ex-girlfriend of Wendi Adelson’s brother, Charlie Adelson, who is also from the Miami area, who may be an unindicted co-conspirator.

Florida Parent Relocation

I’ve written about Professor Dan Markel’s case before. Parent relocations with children during a divorce happens frequently in our mobile society.

In Florida, “relocation” is defined as changing a parent’s principal residence to a new one at least 50 miles away from his or her current address for at least 60 consecutive days. Relocation is a topic that I have lectured and written on before.

Florida has a relocation statute, which in addition to defining relocations, sets out the requirements a parent needs to fill to legally relocate by agreement or court order.

The relocation statute is very technical, and lays out very specific factors a relocation parent must prove, and the court must consider to determine if the proposed relocation is in the best interests of the child.

There is no presumption in favor of or against a request to relocate with the child even though the move will materially affect the current schedule of contact, access, and time-sharing with the nonrelocating parent.

Instead, the court looks at specific factors, such as: the child’s relationship with the relocating parent and with the non-relocating parent, the age and needs of the child, the ability to preserve the relationship with the non-relocating parent; and the child’s preference, among others.

Of course, if one of the parents dies during the divorce proceedings, that would likely cause the divorce, and related issues of parent relocation with the children, to be dismissed.

Murder She Wrote

The divergent theories of Professor Markel’s killing surfaced as attorneys laid out their cases and testimony finally began in the trial of a Miami couple charged in the alleged murder-for-hire plot.

Defense attorneys for Sigfredo Garcia and Katherine Magbanua sought to distance their clients from prosecutors’ theory that the pair carried out the grisly end of a scheme financed by the family of Markel’s ex-wife Wendi Adelson. Investigators say the motive “stemmed from the desperate desire of the Adelson family” that Wendi and the couple’s two young sons be allowed to move to South Florida in the fallout of a contentious divorce with Markel.

Magbanua is the accused conduit between the Adelsons and the killers, Garcia and his friend Luis Rivera. Prosecutors say they drove from Miami to Tallahassee to shoot Markel in July 2014. The pivotal question is why the Adelson family is not facing charges, Kawass told jurors during her 30-minute opening. She asked them to follow the evidence, which prosecutors will present piecemeal.

“There is no direct evidence (Magbanua) was involved. Zero. And that’s because she wasn’t involved. She had absolutely nothing to do with this case,” she said. “The government made it very clear who is behind the killing of Dan Markel. Why aren’t the Adelsons here? Why aren’t they charged? Because they don’t have the evidence to do it.”

Details of the Tallahassee Police Department probable cause affidavit released the morning of June 2, 2016 reveal the route taken by murder suspect, Sigfredo Garcia.

Before the two defense attorneys made their case, prosecutor Georgia Cappleman traced the murder-for-hire allegations.

“Wendi Adelson had a problem and the name of that problem was Dan Markel. And the solution to that problem was Sigfredo Garcia, Katherine Magbanua and Luis Rivera. I believe that you will be convinced the state is not pulling a fast one on you but rather that Katherine Magbanua was hired to solicit Garcia to in turn solicit Rivera to come to Tallahassee and execute Mr. Markel in cold blood.”

Garcia’s attorney began his opening statements by pointing out that the third man charged, Luis Rivera, only received a seven-year sentence for his confession. But the statements to investigators by the state’s key witness were rife with inconsistencies, he told the jury.

The Tallahassee Democrat article is here.

 

Speaking Engagement

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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.

 

Relocations

Posted by Ron Kauffman on

The New Jersey Supreme Court recently overturned a decades-old law, and set a new standard, in the best interest of children in relocation disputes. Relocation disputes arise when one of the parents wants to move away with the child after divorce or separation.

The court ruling Tuesday affects cases in which parents have divorced and one wants to leave New Jersey with a child against the wishes of the other parent.

The old law focused on whether the move would “cause harm” to the child. With the court ruling, divorced parents now must prove the move is in the child’s best interest.

Florida Divorce Relocation

In Florida, “relocation” is defined as changing a parent’s principal residence to a new one at least 50 miles away from his or her current address for at least 60 consecutive days. Relocation is a topic that I have lectured and written on before.

Florida has a relocation statute, which in addition to defining relocations, sets out the requirements a parent needs to fill to legally relocate by agreement or court order.

The relocation statute is very technical, and lays out very specific factors a relocation parent must prove, and the court must consider to determine if the proposed relocation is in the best interests of the child.

There is no presumption in favor of or against a request to relocate with the child even though the move will materially affect the current schedule of contact, access, and time-sharing with the nonrelocating parent.

Instead, the court looks at specific factors, such as: the child’s relationship with the relocating parent and with the non-relocating parent, the age and needs of the child, the ability to preserve the relationship with the non-relocating parent; and the child’s preference, among others.

New Jersey Supreme Court Case

The recent New Jersey Supreme Court decision stems from a 2015 case in which a father tried to keep his daughters from moving to Utah with his ex-wife after the divorce.

Jamie Taormina Bisbing, the primary custodian of her twin daughters, planned to move with them to Utah after getting remarried.

Her divorce settlement required she get written consent from her ex-husband, Glenn, before moving. Glenn Bisbing argued that his daughters should remain in New Jersey.

A trial court permitted the girls and their mother to move to Utah, but an appellate court later reversed that decision, saying the “best interests of the child standard” should be applied.

Matheu Nunn, the father’s attorney, said the state Supreme Court ruling resolves the issue of why the “best interest” standard was applied to all other custody rulings except for cases where a parent is separated from a child.

The New Jersey Supreme Court changes the burden of proof in New Jersey from the old standard in which there was a presumption that children were happiest when their custodial parent was the happiest.

The new standard brings New Jersey law into line with Florida, which puts the burden of proof on the parent who wants to relocate and it reflects a growing trend in New Jersey to consider the rights of both parents.

The US News article is here.

 

Ben Affleck: Should You Separate or Divorce?

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Jennifer Garner filed for divorce from her husband, actor Ben Affleck, almost two years ago, but has yet to officially end her marriage despite a long-term separation.

Affleck has reportedly even been staying in a spare bedroom on the family’s Los Angeles compound. A few weeks back, Us Weekly reported that the couple would keep on with their divorce despite rumors of a possible reconciliation.

The next day, though, E! News claimed that the couple has a “fluid” relationship and that “nothing has really changed” for the couple who has “been working on their relationship for the past few years” and remain in a long-term separation.

Not obtaining an official divorce decree, and having a long-term separation, seems like a good idea, but there are risks. I’ve written about the risks when people separate for years before filing for, or dissolving, their marriages.

Control Over Assets

If you are in a long-term separation, you can be totally out-of-the-loop about your financial well-being. You don’t know what your spouse is earning, spending, investing, selling or buying. In Equitable Distribution states, like Florida, you may be on the hook for some of the debts accumulating during the long-term separation.

Hiding Assets

While you may see no immediate need to legally dissolve your marriage, a long-term separation allows a spouse to plan for a divorce. And, spouses usually plan to make sure that valuable, or difficult to trace, assets are gone when the time comes to disclose your assets and liabilities.

Relocation

Florida has laws governing all aspects of the divorce process, especially as they relate to children. During a long-term separation, your spouse could be transferred to another city, state, or even another country. You should know that the laws relating to divorce and interstate custody are not the same in every state.

Alimony Laws are Changing

For the last several years, the Florida Legislature has tried unsuccessfully to change our alimony laws. The Florida House and the Florida Senate have already introduced bills this year that would dramatically change alimony in Florida. During a long-term separation, alimony laws can change.

The new bills require use of factors to calculate alimony; provide presumptions concerning alimony awards based on the duration of marriages; provide for imputating income in certain circumstances; provide requirements related to taxing and deducting alimony; and prohibit courts from changing the duration of alimony award.

Meeting Someone New

While meeting someone new may make you happier and more fulfilled, it may not help your settlement negotiations. When spouses enter new relationships, they might spend your share of marital assets on their new love interest: buying gifts, going to expensive restaurants, and taking fancy vacations.

Whatever the reasons Ben Affleck and Jennifer Garner have had for putting off their divorce, there are pitfalls of a long separation you should be aware of.

The Vanity Fair article is here.

Parental Relocation Can Be Killer

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Relocation on Thursday, June 9, 2016.

Relocations are stressful. After one contentious parent/child relocation, the Miami Herald reports a Father may have been murdered over his children’s relocation. Suspects are in custody.

I’ve lectured and written about relocations before. Florida relocations are defined as:

moving your principal residence – as it was at the time of the last order establishing or modifying timesharing, or at the time of filing the pending action to establish or modify timesharing – at least 50 miles for at least 60 consecutive days – not including a temporary absence for vacation, education, or health care for your children.

Ask a family lawyer or judge to name the most difficult type of family case to handle, and most likely he or she will say child relocation cases. If a Court grants the move, the non-moving parent will no longer be able to participate in the day-to-day life of her or his child.

On the other hand, if the Court denies relocation, and the moving parent has no choice but to move away, then the child will be separated from the parent with whom the child may have the closest bond. In either situation, the child loses.

The Miami Herald is reporting that in a newly unsealed probable-cause affidavit, police said that “a desperate desire” by the family of FSU law professor Daniel Markel’s ex-wife to move the couple’s two children from Tallahassee to Miami was the motive of murder suspect Sigfredo Garcia, arrested last week for Markel’s murder.

The unsealed affidavit says police used a combination of video surveillance, eyewitness accounts, cell phone records, emails and court records pertaining to Markel and his contentious divorce from Wendi Adelson to place Garcia and alleged accomplice Luis Rivera near the crime scene and establish the Adelson family’s motive to put out the hit.

Wendi Adelson, who was a clinical professor at Florida State University’s law school, filed for divorce in 2012 after six years of marriage. Investigators described the divorce as “bitter,” with Adelson taking their two sons to her parents’ Miami home without Markel’s consent before she returned.

“E-mail evidence indicates Wendi’s parents, especially her mother, wanted Wendi to coerce Markel into allowing the relocation to South Florida,” the affidavit says. “Additionally, Wendi’s brother, Charles Adelson (Charlie), reportedly did not like Markel and did not get along with him.

The affidavit does not allege that Wendi Adelson knew about Dan Markel’s killing in advance or had any involvement in it.

Raising the interest factor, Wendi told the story of her ex-husband, Dan Markel’s murder as a student in the Writing Class Radio Podcast.

The podcast is fascinating.

The Miami Herald article is here.

Wendi’s podcast is here.

Parent Child Relocations in Florida

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Relocation on Thursday, April 28, 2016.

Florida is the 4th fastest growing state, in part, because we are a mobile country. When you’re separating with children though, moving to (or from) Florida is not so easy. This post explores parental relocations with a child.

In Florida, relocations are defined as moving your principal residence – as it was at the time of the last order establishing or modifying timesharing, or at the time of filing the pending action to establish or modify timesharing – at least 50 miles for at least 60 consecutive days – not including a temporary absence for vacation, education, or health care for your children.

I’ve written and spoken about relocations in the past. Increasingly, people have to relocate with their children during, or right after, a divorce or separation. Some studies estimate that up to 25% of parents move away within the first 2-years after their divorce.

These are some of the common reasons for relocating with a child:

  • – New job offers
  • – Work transfer
  • – New spouse
  • – Financial opportunities
  • – Family support networks

There are two ways to successfully relocate with your child:

1. Both parents sign a written agreement consenting to the relocation, and the agreement has a time-sharing schedule, and works out the transportation arrangements.

2. If you can’t enter a written agreement, and you still want to relocate, you must file a petition to relocate and serve it on the other parent.

If you relocate without an agreement or a court order allowing you to move, you can be held in contempt, the child may be compelled to return, and your relocating improperly is a factor in establishing or modifying a parenting plan or time-sharing schedule

There is no longer a legal presumption in favor or against relocations. Instead, Florida courts have to evaluate several factors such as:

  • – The age of the child
  • – The child’s preference
  • – The reasons for moving
  • – History of drug abuse or domestic violence

Ask a family judge to name the most difficult type of case to handle, and most likely he or she will say child relocation cases. If a Court grants the move, the non-moving parent will no longer be able to participate in the day-to-day life of her or his child.

On the other hand, if the Court denies relocation, and the moving parent has no choice but to move away, then the child will be separated from the parent with whom the child may have the closest bond. In either situation, the child loses.

The 24/7 Wall Street article on the fastest growing states is here.

Relocations from the Judge’s Perspective

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On behalf of Ronald H. Kauffman, P.A. posted in Relocation on Friday, October 10, 2014.

Parent and child divorce cases are some of the most challenging. If denied, a parent may be forced to move without their child. If granted, a parent is crushed, a child could be harmed, and there is a timesharng schedule to work out.

It is always helpful to hear about them from the view of a sitting judge who makes the decision. Whenever a judge writes on relocation, I try to pass along that information as I’ve done before.

Judge Sally D.M. Kest is a judge in Orange County. She recently published an article in The Commentator, a magazine published by our Family Law Section. I currently serve as the Chair of the Commentator for the 2014-2015 term.

Judge Kest has found that many attorneys do not comply with the relocation statute. For example, they forget to present evidence about the factors involving the child’s relationships, fixating instead on the relocating parent will have more time, or more money, or will be happier.

One argument concerns the future parent/child relationship becoming as good, or even better, because the child and non-relocating parent will have extended timesharing during the summer or vacations.

This ignores the benefits of having regular contact with a child. Daily contact allows the parent to be involved in the daily life, friends, school and extra-curricular activities of the child.

One problem in relocation cases is balancing the statutory factors and the parent’s reason for relocation. The typical reasons for relocation include: remarriage of a parent, a new job offer, a job transfer, a desire to pursue additional educational opportunities, or a desire to be closer to extended family.

While these life events may result in some positive benefits for the child, the court must balance these benefits against the loss of regular and consistent contact with the non-relocating parent.

Another problem overlooked is that people forget to consider the child’s loss of frequent contact with the stay home parent. Failing to acknowledge that the move will significantly affect the parent/child relationship can result in of the court denying the relocation.

People also forget that for the court to make findings and decision regarding the relocation, the facts presented at the evidentiary hearing must address the statutory factors.

In Florida, there is no presumption for or against relocation. The court must, however, consider the best interest of the child. Petitions for relocation are given priority on the court’s calendar.

Relocation cases are intense. You must present the facts in the case that will support the relocation. Parents who recognize these facts and address them in their trials will be more likely to have their relocations granted.

Judge Kest’s article can be found here.

Relocating with Children Out of State: The Risks

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On behalf of Ronald H. Kauffman, P.A. posted in Relocation on Friday, August 29, 2014.

A parent who wants to child custody with their child out of town, or out of state, creates special risks to the relationship between the child and the parent who stays. What are some of the risks in a typical move-away case?

I’ve written about relocations before. One of the first things to consider is the age of the child. For example, younger children may have a problem with the emotional and physical consequences of losing their bonds with their mom or dad. For older children, losing their friends, sports or school buddies is a bigger concern.

Another problem is the location of the new home. If the distance and travel time are far enough away, there could be a risk that the non-moving parent may just lose contact or that drop their involvement in their child’s life.

Another area of a risk of problems depends on the child’s own individual personality. Boys have been known to have behavioral problems. Children with higher cognitive ability may adjust better than others.

A big risk concerns the alienating parent who tries to limit contacts, inhibit information regarding the children, makes derogatory remarks. The more likely a parent tries to alienate another parent before moving, the greater the risk relocation may harm the child more.

Some parents move away in good faith. For instance, they have a new job offer, or they’ve met someone new and are getting married. That’s not always the cases.

Some parents try to relocate in bad faith: they think of relocation as a way to interfere with the relationship between the children and the non-moving parent.

Relocation issues do not always appear in a cut-and-dried manner. Sometimes it is difficult to tell if relocation is in bad faith, or even if it’s in good faith, the relocation is in the child’s best interest. Some of the risk factors identified in this post can help determine if relocation will be in the child’s best interest.

Relocations with Children: Panel Discussion

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On behalf of Ronald H. Kauffman, P.A. posted in Relocation on Wednesday, February 19, 2014.

I recently was asked to speak on a panel at the Family Court Services, Lunch and Learn lecture series on the topic of divorce: Tough Choices. Can Children Win? If you were one of the 90 or so registered attendees, you had an opportunity to hear from a panel of experts in the legal, judicial and psychological fields on cutting edge issues in relocations. If you didn’t, here are some of the take away points:

Florida’s Relocation Statute is Highly Technical

Relocations, unlike much of family law, are highly technical. They involve fast deadlines, mandatory language, detailed service of pleading rules, font size requirements, detailed pleadings, and the list goes on.

Judges and lawyers report that lawyers are frequently overlooking key provisions of the statute, and children are losing in relocation cases because these strict pleading requirements and deadlines are not being met.

Florida’s Relocation Statute has an Intricate 11 Factor Analysis

There is no presumption in Florida anymore on whether you can move away with your child more than 50 miles from your principal residence for more than 60 days. That was the old rule.

Instead, courts must evaluate a relocation request based on 10 detailed and objective factors, and one catch-all factor. These factors cross over between legal standards developed over many decades litigation, and many psychological factors. The test begs the question of what kind of team do you need to assemble on your side to successfully relocate with your child in Florida.

Relocations with Children Involves Risk

There is always a probability of harm associated with relocations. Your child could face difficulties in adjusting to a new environment, or have developmental needs which are impacted. Or, they simply are baseball fanatics and a move to a country without a baseball league could be devastating.

Factors such as the age of the child, the distance of the relocation from the non-relocating parent, the stability of the parents, the level of involvement of both parents in the child’s upbringing, substance abuse, parental alienation syndrome, and other conflicts all are factored into a decision to relocate.

The clear take-away from the presentation was that relocations involve difficult decisions, courts are required to balance several psychological and legal factors, and the statute governing relocations in Florida must be strictly followed.

The event was hosted at the Family Law Courthouse, and was sponsored by Family Court Services. Kidside is a not for profit organization devoted to supporting Family Court Services. Kidside’s website is here if you are looking to support this great organization.

Speaking on Panel about Relocation Next Week

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On behalf of Ronald H. Kauffman, P.A. posted in Relocation on Friday, February 14, 2014.

I will be speaking on a panel hosted by Family Court Services on Wednesday February 19th from Noon to 2:00PM at the Lawson E. Thomas Family Courthouse. Anyone who practices in this area or is interested should attend.When one parent moves away with the children from another parent more than 50 miles for more than 60 days it is called a relocation in Florida.

One of the most difficult situations facing parents and children is when a parent wants to relocate to another city. These are called relocation cases. Florida is in the Sun Belt, and is naturally a very mobile society.

Residential moves are very common among parents after divorce. Parents want to pursue new job opportunities, earn a degree, and return to their home community where parents and extended family live, or remarry.

The non-relocating parent usually opposes the child moving because it makes it very difficult to stay meaningfully involved with the child, or sustain a quality parent-child relationship. This is especially true when the moving parent wants to relocate with a very young child.

Relocation cases are very fact-driven, and call for a thorough investigation of the family’s context and circumstances. It is common to request guardians, psychological experts, social investigations, and parental responsibility evaluations in relocation cases.

Very often relocation cases raise issues of parental involvement with the child. Allegations are frequently made that one parent is trying to alienate the child from the other parent, and the parent who is feeling shut-out is alleging that the other parent is engaging in gate-closing behaviors to hinder involvement with the child.

Relocation cases are governed by §61.13001 of the Florida Statutes. It is a technical statute, with deadlines and requirements that are specifically stated and enforced. Both parents are charged with understanding its details, and are well served by a lot of preparation and sound legal advice.

For more information on the Family Court Services Unit of the 11th Judicial Circuit click here.