Tag: visitation

Grandparent Custody Goes to Federal Court

A rare grandparent custody and timesharing case ends up in a federal court after the child in question filed a temporary restraining order to prevent county child services from sending him to Florida to live with a father he claims he’s never met.

Grandparent Custody

The Ruckus in Columbus

“John Doe” is a thirteen-year-old boy in the temporary custody of Franklin County Children Services. He had been living with his mother in Ohio, but Children Services suspected that he was being abused or neglected. So, Children Services filed a case in Ohio state court to have Doe removed from his mother’s home. The court ordered Doe removed, and it is now presiding over the resulting custody dispute.

During the proceedings, the state court gave Children Services custody of Doe. Children Services then placed him with his maternal grandmother, who he has had a relationship with for much of his life and who also lives in central Ohio. A Guardian Ad Litem, who filed a report, recommend placement with his grandmother.

The child claims he has had no contact with his father from the time he has a baby until after the case was filed, that his father has a criminal record and has two family members who died from drug overdoses. He has expressed fear of his safety if made to live with his father, as well as fear of traveling to Florida at this time during the COVID-19 pandemic, and wishes to remain with his grandmother.

However, Child Services decided the child should be put on a plane to live permanently with his father in Florida, for reasons unknown to him, with whom, as best he can recall, he has not had a relationship for his entire life.

The child then filed a complaint in the U.S. District Court, and sought a temporary restraining order (a TRO) claiming he was denied procedural due process and first amendment retaliation claims. The trial court granted his motion.

Children Services appealed to the 6th Circuit Court of Appeals and moved to stay the injunction pending the appeal.

Florida Grandparent Visitation

I have written extensively on grandparent visitation in Florida. In early common law, there was never a right to visitation by non-parents, and Florida has clung to that tradition. That is ironic, as a lot of elderly voters reside in Florida, and politicians have been trying to create visitation rights to grandparent voters here.

Beginning in 1978, the Florida legislature started making changes to the Florida Statutes that granted enforceable rights to visit their grandchildren.

The Florida Supreme Court built a massive wall blocking Florida grandparent visitation rights, explaining that parenting is protected by the right to privacy, a fundamental right, and any intrusion upon that right must be justified by a compelling state interest. In Florida, that compelling state interest was harm to the child:

“[W]e hold that the [s]tate may not intrude upon the parents’ fundamental right to raise their children except in cases where the child is threatened with harm.”

Recently, the Florida Supreme Court held that under the federal Parental Kidnapping Prevention Act any custody determination or visitation determination – including grandparent rights  – are protected and enforceable under the PKPA. And, to the extent that the PKPA conflicts with Florida law, the PKPA controls under the supremacy clause of the U.S. Constitution because it is a federal law.

The Buckeye Way

The Sixth Circuit rejected Children Services’ arguments that the district court should have abstained in favor of state proceedings:

Children Services filed the case to remove Doe from a potentially abusive home, and “the temporary removal of a child in a child-abuse context is … in aid of and closely related to criminal statutes.”

But removal proceedings are not at all “akin to criminal prosecution” as far as the child is concerned. And here, it is the child who has filed the federal lawsuit. That difference matters, because the Court has described proceedings in this second category as those that are “characteristically initiated to sanction the federal plaintiff.”

That does not describe this case, where the federal plaintiff is not an abusive parent, but a child. In the absence of full and thorough briefing, we will not broadly construe the Younger categories to apply to this different situation—especially given the Court’s instruction that Younger “extends to the three ‘exceptional circumstances’ [it has identified], but no further.”

Another argument by the agency was that under the Rooker-Feldman doctrine federal district courts lack jurisdiction to review state court judgments, but the court held it has “no application to judicial review of executive action, including determinations made by a state administrative agency.”

The court found that the child was not challenging a state court judgment; he was challenging the decision of Children Services, an agency of Franklin County, Ohio.

The court also rejected Children Services’ argument that it should get a stay because it’s likely to prevail on the merits of its appeal:

The states’ interest in resolving child-custody disputes is exceptionally strong, and federal court involvement in custody proceedings will almost always be inappropriate.

Finally, the court cautioned all district courts against entangling themselves in this area of traditional state concern.

The 6th Cir. Opinion is here.

 

Unorthodox: Religion, Divorce and More Good Coronavirus Info

Religion and courts don’t mix. However, judges are sometimes asked to order a parent to enforce religious issues when timesharing. That just happened in Brooklyn, and the case involves ordering an atheist father to follow religious laws. There’s also some good coronavirus information out there.

Divorce Religion

Brooklyn 2020

During any relationship, a parent is free to choose how strictly to enforce the other parent’s religion. Sure, feeding your Jewish child Cuban croquetas may lead to a divorce, but your spouse can’t report you to the police for not eating kosher.

But how about after a couple files for divorce? When the parents have divorced and entered into a settlement agreement about religious matters, for example, some religious restrictions may be enforceable in court despite the separation between church and state.

Recently in Brooklyn, a couple practiced Satmar Hasidic Judaism, the same sect in the Netflix series “Unorthodox.” In the Brooklyn case, the Father went “unorthodox”, but continued to dress as a Hasidic Jew. After the divorce, a family court awarded the mother sole custody with the father getting parental access.

The father was ordered to give the children kosher food and make “all reasonable efforts to ensure that the children’s appearance and conduct comply with the Hasidic’ religious requirements of the mother and of the children’s schools as they were raised while the children were in his custody.

Florida Religion and Divorce

I’ve written about the intersection of religion and divorce – especially as it relates to vaccinations. Religion, religious beliefs, and religious practices are not statutory factors Florida courts consider when determining parental responsibility.

Nor is religion an area in which a parent may be granted ultimate responsibility over a child. Instead, the weight religion plays in custody disputes grew over time in various cases.

One of the earliest Florida case in which religion was a factor in deciding parental responsibility restricted one parent from exposing the children to that parent’s religion.

The Mother was a member of The Way International, and the Father introduced evidence that The Way made the Mother an unfit parent. He alleged The Way psychologically brainwashed her, that she had become obsessed, and was neglecting the children. The trial judge awarded custody to the Mother provided that she sever all connections, meetings, tapes, visits, communications, or financial support with The Way, and not subject the children to any of its dogmas.

The Mother appealed the restrictions as a violation of her free exercise of religion. The appellate court agreed, and held the restrictions were unconstitutionally overbroad and expressly restricted the Mother’s free exercise of her religious beliefs and practices.

Following that, and other decisions, Florida courts will not stop a parent from practicing their religion or from influencing the religious training of their child inconsistent with that of the other parent.

When the matter involves the religious training and beliefs of the child, the court generally does not make a decision 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.

Do the Right Thing

The Brooklyn case went back to the family court, and after a hearing was held, the mother conceded that the father was not really preventing the children from practicing their Judaism during his timesharing.

Instead, the mother’s complaint was that the father himself was not complying with Hasidic religious requirements in the presence of the children while he was timesharing with them, and that didn’t comply with the religious clause.

After the hearing, the family court attempted to enforce the religious upbringing provision of the judgment by ordering the father – during his timesharing – to “conduct himself in accordance with the cultural norms” of Hasidic Judaism established by the parents during the marriage.

The court then directed that the father’s behavior and conduct when in the presence of the children “must and should be consistent with the cultural norm . . . established by the parents.”

The father appealed from that part of the order directing him to comply with the cultural norms of Hasidic Judaism during his timesharing. The appellate court reversed.

By directing him to comply with the “cultural norms” of Hasidic Judaism during his timesharing, the family court ran afoul of constitution by compelling the father to himself practice a religion, rather than merely directing him to provide the children with a religious upbringing.

While the court referred to the “cultural norms” by which the children were raised, the testimony at the hearing made clear that the “cultural norms” were really the religious requirements of Hasidic Judaism, which was unconstitutional.

Good Coronavirus Information

Green spaces, parks, and boardwalks are too crowded — making it impossible to maintain the minimum 6 feet of social distancing recommended by the Centers for Disease Control and Prevention without exposing yourself or your family to the coronavirus.

Tech can help avoid those areas and crowds if you absolutely must leave your shelter. Here are some tools that can help:

  • Strava, the activity-tracking app, can help you find alternative routes for running, walking and riding.
  • AllTrails identifies lightly treaded trails nearby.
  • Before your next grocery run, consult Google’s popular times to see if it’s crowded. A pink “Live” indicator is a good representation of how many people are there right now.
  • If you aren’t sure what 6 feet looks like, bust out the Measure app on your iPhone or Android device.

The Reason article is here.

 

Coronavirus makes Child Custody Tricky and More Good Information

Home schooling and being quarantined for weeks, the coronavirus pandemic is causing chaos for everyone. But for parents who are divorced or separated, child custody is even more tricky. There’s also some good information about coronavirus.

Coronavirus Custody

Parenting in the time of the Coronavirus

Courts are open, our office is open (remotely), and we are handling new divorce cases and child custody matters. And what we’re seeing are recurring problems during the coronavirus crisis with alimony and support payments, and especially sharing the children.

Courts may be open, but there is definitely a backlog with remote courts, and courts are handling emergencies first. That means many parents may have to hammer out their differences largely without the help of a judge.

As the Wall Street Journal recently reported, across the country, many family courts are closed or considering only emergency cases, such as those involving domestic violence and restraining orders.

Some jurisdictions, like Texas, require that existing custody agreements be followed even when schools are closed. (Families can get help from marriage and family therapists and professional mediators.)

Florida Child Custody

I’ve written about child custody issues before. In 2008, Florida modified its child custody laws to get rid of outdated and negative terminology about divorcing parents and their children to reduce animosity.

Florida law did that by deleting the definitions of the terms “custodial parent” or “primary residential parent” and “noncustodial parent” and creating a definition for the terms “shared parental responsibility, “parenting plan”, and “time-sharing schedule.

Shared parental responsibility, is similar to joint physical and legal custody, and is a relationship 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.

But the “best interest of the child” is not an empty slogan. In Florida, how you act during the coronavirus can impact a judge’s decision. In determining the best interest of the child, a court has to consider things like a parent’s facilitating and encouraging parent-child relationships, honoring the time-sharing schedule, and being reasonable when changes are required.

Coronavirus Custody Concerns

Do not be surprised if the parents who aren’t cooperating during the coronavirus crisis find that the other parent uses what happens in court at trial.

In a few weeks or months, family courts are going to re-open, and there will be some accountability for the actions parents are taking now.

Enhancing risk and damaging your co-parenting relationship, those are things that are relevant to how the court. views your parental status.

Coronavirus Good News and Information

Good information? How about social distancing tips from a hermit? Billy Barr is the only resident of Gothic, Colorado, and he has tips on social distancing:

  • Keep track of something. Each day, Barr tracks the weather for a number of groups including the Colorado Avalanche Information Center.
  • Keep a routine. Barr wakes up around 3:30 a.m. or 4 a.m., and files weather reports to different agencies.
  • Celebrate the stuff that matters, rather than the stuff you’re supposed to celebrate. Barr has mostly ditched holidays and birthdays, but he does celebrate Jan. 17, when sunrise goes back to what it was on the solstice.
  • Use movies as a mood adjuster. When Barr is really stressed, he’ll might watch an animated movie, something cute and funny. Movies like “Pandemic” he passes on, but; The Princess Bride’ is a favorite.

The Minnesota Public Radio article is here.

The Wall Street Journal article is here.

Happy Thanksgiving

The divorce and family law offices of Ronald H. Kauffman, P.A. will close at 2:00 PM on Wednesday, November 27 for the Thanksgiving holiday. We will re-open at 9:00 AM on Monday, December 2, 2019. We wish you and your family a safe and happy Thanksgiving holiday.

Happy Thanksgiving

Before Thanksgiving’s arrival is the time to resolve child custody and timesharing problems so you can enjoy your turkey dinner with minimum stress for you and your children. Below are suggestions to make your Thanksgiving visitation issues a little easier:

Alternate. Some families alternate Thanksgiving every other year. If you get the kids for Thanksgiving this year, next year will be the other parent’s turn. Having a regular plan to fall back on can eliminate the potential for what is fair.

Be flexible. An easy Thanksgiving schedule for everyone may require some changes from the normal visitation schedule.

Be respectful. You may not want to be friends anymore, but you need to figure out how to communicate with your ex without all the emotional baggage.

Don’t mix issues. Do not bring up unrelated issues which could make a problem free Thanksgiving dinner impossible. Set aside your differences until after the holiday season.

Pick your battles. Thanksgiving may be more important to you than Easter is to your ex-spouse. Don’t fight just for the sake of fighting.

Protect the children. Your children’s memories of Thanksgiving should be about great food and family fun. They should not be forced to witness you and another parent arguing.

Plan. Start talking about the holiday visitation schedule sooner rather than later, the longer you wait the harder it can be.

Thanksgiving can be stressful. But the weather has cooled and the kids are on vacation. Try to make the holidays the best time of year.

 

 

Pet custody is going to California

Pet custody is closer to becoming a reality after California passed a law making pets community property but letting judges decide who gets to keep them. What is Florida’s law on pet custody?

Pet Custody

California Dreaming

All the leaves are brown, and the sky may be grey, but California just began a new era for how pets are treated after a divorce. A new law passed on Thursday makes sure pets are seen as more than just property when it comes time to split up assets in a divorce.

According to the San Diego Tribune, Assembly Bill 2274 will ensure care of a pet is taken into consideration both while divorce proceedings are underway and after they’re made official.

With the new law, a person can petition the court for sole or joint ownership based on care of the pet, which is defined to include “prevention of acts of harm or cruelty” and “the provision of food, water, veterinary care and safe and protected shelter.”

The law also adds a new ability for a person in the divorce to request an order that would require one person in the marriage to care for the pet prior to the divorce becoming final.

Florida Pet Custody

I’ve written on the development of pet custody cases and statutes before. Pet custody cases are becoming more and more prevalent around the country. That is because state lawmakers and advocacy groups are promoting the notion that the legal system should act in the best interests of animals.

Pets are becoming a recognized part of the family. About 15 years ago, states began to allow people to leave their estates to care for their pets. Recently, courts have gone so far as to award shared custody, visitation and even alimony payments to pet owners.

Florida doesn’t have pet custody or visitation laws. Florida courts are already overwhelmed with the supervision of custody, visitation, and support matters related to the protection of children.

Accordingly, Florida courts have not or cannot undertake the same responsibility as to animals.

I Remember California

The law in California used to be like Florida, viewing pets as property to be argued over in the separation of assets.

“There is nothing in statute directing judges to treat a pet differently from any other type of property we own, I know that owners view their pets as more than just property. They are part of our family, and their care needs to be a consideration during divorce proceedings.”

Now, rather than seen as a valued property item or dollar amount to be divided, the well-being of the pet will get more consideration.

California Calling

Supporters of the law hope the new law will lead to fewer homeless animals. But not everyone is happy. The Association of Certified Family Law Specialists opposed it, saying divorces already face significant delays and issues of contention in court, especially when it comes to children.

“By adding in sole or joint ownership of pet animals as a determination courts can make in divorce proceedings, the already backlogged family court proceedings may become even more delayed as judges consider the myriad factors that come into play when making decisions about community property division and child custody.”

The San Diego Tribune article is here.

 

Hollaback Girls Mediate Custody

Singer, Gwen Stefani and her ex-husband, Bush lead singer Gavin Rossdale, are trying to reduce the ‘misery’ of ‘people at war’ and mediate their child custody problems years after finalizing their divorce. But, how does a court resolve child custody disputes like this?

custody

The Chemicals Between Us

A source tells E! News the pair are “going to mediation” because of disagreements regarding their three son’s upbringing. They don’t agree on custody and the time the kids are spending with each of them.

Since Gavin recently finished his tour with Bush and will be home more often, he wants more time with their three sons. However, the source says, “Gwen believes that she provides a consistent living environment and that the kids should be with her the majority of the time.”

“They are older now and taking their school work and activities seriously. She thinks Gavin still very much lives a rock star lifestyle and it’s in the kid’s best interest to be with her.”

More importantly, the source says, “She wants to raise the kids a certain way and it’s very challenging because Gavin has different priorities.”

The Little Things of Florida Custody

I’ve written about child custody issues before. In 2008, Florida modified its custody laws to get rid of outdated and negative terminology about divorcing parents and their children to reduce animosity.

The law did that by creating new legal concepts such as “shared parental responsibility, “parenting plan”, and “time-sharing schedule.

Shared parental responsibility, is similar to joint physical and legal custody, and is a relationship 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 children.

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 children’s timesharing are major decisions affecting the welfare of children. 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.

For these parents, courts will want to know how long the children have lived in a stable, satisfactory environment, and the desirability of maintaining that continuity. Where the parents live is also very important, especially with school-age children.

Also, what are the home, school, and community records of the children, and which parent provides a consistent routine for the children, such as discipline, and daily schedules for homework, meals, and bedtime.

Everything Zen

Following their split in 2015, the boys have spent a majority of their time with Gwen in Los Angeles while Gavin has toured with Bush and completed a brief stint as a judge on The Voice U.K.. Gavin touched on this when he talked to The Sun’s Fabulousmagazine.

“It was weird because I had to go and make a home from scratch that could compare to the great one they already have. That was the challenge for me as a dad.”

Gwen has since found love with country singer Blake Shelton, who gets on very well with the boys. The couple has even taken vacations with the children together.

The E! News article is here.

 

New Article on Grandparent Visitation

The holiday season is in full swing. In the spirit of shameless self-promotion – and if you are looking for a last-minute gift for the family law reader in your life – what could better than my new, Game of Thrones themed article, “Unbowed, Unbent, Unbroken: An Update on Grandparent Visitation”?

The Game of Thrones

The struggle for grandparent visitation rights in Florida has become a game of thrones between the three branches of Florida government.

The Florida Supreme Court has stricken all previous attempts to legislate grandparent visitation as unconstitutional. Yet, the legislature and the governor keep passing new laws to enforce grandparent visitation rights for Florida voters.

I’ve written about grandparent visitation rights before. However, this new article not only reviews the history of grandparent visitation rights in Florida, but it provides an update on those rights through the Florida Supreme Court’s recent decision earlier this year.

The Wall

In early common law, there was never a right to visitation by non-parents, and Florida has clung to that tradition. That is ironic, as a a lot of elderly voters reside in Florida, and politicians have been trying to create visitation rights to grandparent voters here.

Beginning in 1978, the Florida legislature started making changes to the Florida Statutes that granted enforceable rights to visit their grandchildren.

The Florida Supreme Court built a massive wall blocking Florida grandparent visitation rights, explaining that parenting is protected by the right to privacy, a fundamental right, and any intrusion upon that right must be justified by a compelling state interest.

In Florida, that compelling state interest was harm to the child: “[W]e hold that the [s]tate may not intrude upon the parents’ fundamental right to raise their children except in cases where the child is threatened with harm.”

The High Sparrow

The U.S. Supreme Court, has also commented, reasoning that the 14th Amendment’s due process clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

The U.S. Supreme Court did not hold that the due process clause requires a showing of harm or potential harm to the child as a condition for granting visitation. Instead, the U.S. Supreme Court left those decisions for the states to decide because:

much state-court adjudication in this context occurs on a case-by-case basis.

There have been a few legislative attempts to grant some rights of visitation for grandparents in Florida, but they have been very modest.

Despite these recent recent legislative victories for grandparent visitation rights in Florida, a recurring problem has also been what to do about out-of-state grandparent visitation court orders.

Florida courts have been unwilling to enforce them until recently.

Dances with Dragons

This year, the Florida Supreme Court held that under the federal Parental Kidnapping Prevention Act any custody determination or visitation determination – including grandparent rights  – are protected and enforceable under the PKPA.

And, to the extent that the PKPA conflicts with Florida law, the PKPA controls under the supremacy clause of the U.S. Constitution because it is a federal law.

The Florida Bar Journal article is available here.

 

Thanksgiving Timesharing Tips

E-Online is reporting about Brand & Angelina’s Thanksgiving timesharing/visitation issues. With the holiday a few days away, now is the time to resolve timesharing problems so you can enjoy your turkey with minimum stress for you and your children.

I’ve written about problems and solutions to holiday timesharing/visitation issues before. Here are some good suggestions to make your Thanksgiving visitation battles a little easier:

Alternate. Some families alternate Thanksgiving every other year. If you get the kids for Thanksgiving this year, next year will be the other parent’s turn. Having a regular plan to fall back on can eliminate the potential for what is fair.

Be flexible. An easy Thanksgiving schedule for everyone may require some changes from the normal visitation schedule.

Be respectful. You may not want to be friends anymore, but you need to figure out how to communicate with your ex without all the emotional baggage.

Don’t mix issues. Do not bring up unrelated issues which could make a problem free Thanksgiving dinner impossible. Set aside your differences until after the holiday season.

Pick your battles. Thanksgiving may be more important to you than Easter is to your ex spouse. Don’t fight just for the sake of fighting.

Protect the children. Your children’s memories of Thanksgiving should be about great food and family fun. They should not be forced to witness you and another parent arguing.

Plan. Start talking about the holiday visitation schedule sooner rather than later, the longer you wait the harder it can be.

Thanksgiving can be stressful. But the weather has cooled, kids are on vacation, and work may have slowed too. Try to make it the best time of year.

The E-Online article is here.