General legal information furnished as a service of Fort Lauderdale / West Palm Beach family law attorney Janet Langjahr
An Illinois court ordered that two children born in the US be returned to their father in Poland, where the girls had reportedly been living before their mother allegedly abducted them to the US, after filing for divorce in Poland.
The mother reportedly absconded with the children to the US because “[i]n Poland there is no future for the kids.”
But it is reported also that neither the mother nor the children want to live in Poland again.
It was not reported whether the mother will pursue custody of the girls in the Polish courts, which have been held to have child custody jurisdiction over the children.
Read more in articles from the Chicago Sun Times and the Chicago Tribune.
The ex-wife of one of the owners of Fry’s Electronics stores is reportedly challenging a postnuptial agreement on the grounds that her ex-husband allegedly defrauded and coerced her into signing it.
In contrast to a prenuptial agreement, a postnup is a property settlement agreement entered by a couple at any time after they have married. A postnup is often made in connection with a divorce, but by no means always.
In this case, Mrs. Fry brought a separate civil suit with contract and business claims going to the heart of the structuring of the Fry holdings.
She hopes to get access in this case to financial records of Fry’s holdings that she apparently was not able to access in the divorce case.
Read more in this San Jose Mercury News article.
The Missouri child support enforcement agency reportedly admitted making a huge mistake in at least one father’s income withholding for child support.
A data entry clerk allegedly entered the amount of an arrearage in total as the recurring monthly obligation. This resulted in fifty percent of the man’s pay being withheld.
The father, without the help of an attorney, was unable to work within the system to have the error corrected.
Sadly, his frustration recently spawned a quadruple murder-suicide and a rape.
The support agency subsequently disclosed that a child support investigator had noted in the file the discrepancy between the court-ordered obligation and the income deduction order.
It doesn’t appear that he or she initiated any corrective measures.
Read more in this Kansas City Star article.
Texas was the forum for a factually complicated, aggressively litigated case that painfully illustrates an important legal principle.
In the few years that they were married, the mother and father and, later, their baby, “moved” from country to country every few months, including a couple of months, here and there, spent in Texas. Most of the child’s short life had actually been spent in the country of Belarus, where his maternal grandmother lived.
While the child was in Belarus, the father filed in Texas for annulment and (apparently) for visitation rights with the child. The mother did not participate in that proceeding and the annulment was granted.
Subsequently, the mother asserted that Texas did not have jurisdiction over the child but she requested a new trial. (The report does not reconcile these two inconsistent positions; a reasonable speculation would be that the mother requested a new trial as her first choice for relief but, strictly as a fallback position if that were denied, she alternatively requested dismissal for lack of jurisdiction over the child.)
Interestingly, the mother was granted a new trial and there was no report of any ruling / finding / opinion /conclusion whatsoever regarding jurisdiction of the child.
Both mother and father fully participated in the second trial. The court thereafter granted primary custody to the mother and visitation to the father and a divorce was granted.
Needless to say, the proceedings would typically have concluded here. But the father allegedly wrongfully kept the child after visitation and the mother had to bring additional proceedings for emergency orders for the child’s return.
Next, both the mother and the father each filed their own motions for a new trial.
Then, after all of the proceedings above, the father, for the first time, filed a motion to dismiss for lack of jurisdiction over the child.
It should be noted that jurisdiction over the child and jurisdiction over the divorce may, under certain circumstances, be different, meaning that, at a certain point in time, the same state may not be able to decide both matters.
It should also be noted that jurisdiction over a child is a type of jurisdiction that lawyers call subject matter jurisdiction. This type of jurisdiction is essential for a court to decide a case.
It’s about whether a court does or does not have the power to decide a case about a certain type of “thing”, or subject. If the court doesn’t have the power, it doesn’t. Period. No agreement or error by the parties can give the court more power than it has.
The trial court denied the father’s motion to dismiss - largely, it appears, because the father never returned the child as ordered and seemed to have brought the motion to dismiss out of “sour grapes”.
In reversing, the appellate court sympathized but, in essence, held that the father’s attitude and “error” could not confer more power on the Texas courts than they had. The Texas court just didn’t have power to make custody rulings about this child under the facts of this case and under the legal rules governing child custody jurisdiction.
As for the father making this last ditch argument after all of the litigation that had already gone on, the court held that an argument so fundamental that it goes to the heart of the court’s power to rule, can still be raised even at the eleventh hour.
And in Florida too, this type of fundamental argument can be made right to the bitter end of the case.
What may be most interesting about this case is that this rather obvious issue wasn’t raised much earlier in the game - even by the court itself.
Read more in this Texas Lawyer article.
Post partum depression has a high profile. It has been cited in murder cases and celebrity spats.
But adoption professionals and families involved in adoptions report a different, low profile condition: post-adoption depression. Although its cause is poorly understood at this time, it is reportedly not uncommon among adoptive mothers.
Some adoption agencies are now offering services to support adoptive parents with post-adoption depression.
Read more in After the Adoption, a New Child and the Blues.
A local Boca Raton woman is on trial for abducting her son from his father’s lawful custody and removing the boy to Costa Rica for nine months four years ago. She has not seen her son since she was arrested upon her return to this country.
The mother reportedly contends that she was protecting her son from alleged molestation by her ex-husband’s boyfriend. She refused any plea bargains and looks forward to vindicating herself at trial.
Read more in this Miami Herald article.
Couple voluntarily place their infant into foster care.
Foster parents decide to adopt the girl.
Six years after giving her up, couple decide they want daughter back.
Case is on its way to the Tennessee Supreme Court.
Oh, the biological parents pressing the appeal are Chinese nationals. And the Chinese embassy and community groups are complaining of cultural bias in the courts.
The biological parents’ legal arguments are:
Read more in State Supreme Court will hear high-profile international adoption appeal.
Foster kids who aren’t ever adopted age out of their support system in a blink when they turn eighteen. They are thrust out on their own without much (if any) further social, financial or emotional support.
Now the State of Florida is considering providing more support for children transitioning from the foster care social support system to total legal independence. With more assistance, these children could get off to a better start in their adult lives. Safe housing, more and better education, more promising career opportunities and so on.
Read more at Former foster kids may get options.
According to an article in the [Kentucky] Gleaner News, all of our society’s efforts to stamp out child abuse aren’t getting anywhere. There are still just as many victims today as before.
An expert on child abuse recommends intensive preventative education to raise kids’ awareness of what constitutes abuse and their knowledge of where to turn for help.
According to another expert, part of the problem is that people just don’t want to believe that child abuse is taking place right in their own neighborhoods.
According to this Arizona Daily Star article, a successful businessman-turned-candidate for governor successfully urged the family court to halve his child support obligation - and shortly thereafter committed $100,000 of his own personal funds to his campaign.
The candidate was quoted as saying that the reduced support payment “for one kid for a four-year marriage is pretty darn generous.”
The candidate is also reportedly extremely delinquent in his spousal support obligations to his ex-wife.
The candidate seeks political office that would make him the director of the state of Arizona’s public policies.
If he wins election, will Arizona’s children and ex-spouses face across-the-board reductions in child support and spousal support?
An interesting study comes out of the University of Oklahoma.
According to this United Press International report, men confident of their paternity turn out to be correct more than 98% of the time.
The study also found that men who doubt their paternity actually prove to be the actual biological fathers more than 70% of the time.
This report is timely, in light of recent publicity surrounding claims of rampant paternity fraud. More on that in a previous post.
The study also underscores an important point: perception is more powerful than reality. Men are more likely to be involved with and provide support for children who they believe are theirs - regardless of whether they are right or wrong in that belief.
A child custody jurisdiction case on appeal to Maryland’s highest court reads like a law school final exam.
According to this Baltimore Daily Record article, the mother, father and child all lived in India from 1999 until 2002. Then the mother took the child away from India to the Baltimore metro area.
The father reportedly brought a child custody proceeding first, in India, within 6 months of the child’s removal from India. The mother later brought a child custody proceeding in Maryland, after living in Maryland with her son for six months.
India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, and no other treaty applies.
When the mother filed for custody there, the Uniform Child Custody Jurisdiction Act was the applicable law of Maryland. Maryland has since adopted the newer Uniform Child Custody Jurisdiction and Enforcement Act.
The Maryland trial court reportedly held that India had already validly exercised jurisdiction over the child by the time the mother filed suit in Maryland and, therefore, dismissed the mother’s suit there.
But an intermediate level appeals court overturned the dismissal of the mother’s Maryland case.
The key issue pressed on appeal is reported to be:
whether Maryland’s child custody jurisdiction statute requires Maryland to defer to India’s previous, presumably valid, exercise of jurisdiction in accordance with Indian law, if the mother was afforded due process of law, at least assuming that the child’s fundamental human rights would not be violated in India.
As the issue has apparently been framed narrowly on appeal (barring some unusual deviation from the uniform act in the version passed in Maryland), the answer likely should be yes.
Having said that, that still doesn’t necessarily mean that Maryland may not or should not exercise jurisdiction and proceed with the mother’s case. It just depends on all of the underlying facts of the case - and, arguably, on the status and posture of the case still pending in India, as well as the position of the judge presiding over the case in India.
It is unclear from the article whether the Maryland trial court delved that deep.
Assembly of all the financial information necessary to prepare income tax returns also goes a long way toward preparing for the financial aspects of a divorce case.
And that financial information gathering doesn’t even arouse any suspicion at this one time of the year.
That’s probably why divorce filings tick up right after the tax deadline passes.
Read more from this Chicago TV news piece.
There’s a persistent myth that domestic violence and abuse only happen in uneducated, lower income homes. Abstract reports of studies resulting in findings to the contrary can’t seem to dispel it.
An article from right here in South Florida very concretely puts the lie to the myth.
According to the article, the teenaged son of a successful Miami attorney called 911 on an occasion when his drunk parents got into a violent fight - just one of many such occasions the boy indicated. The attorney was also reportedly abusive toward the police responding to the 911 call.
Despite his wife’s apparent bruising, prosecution of the lawyer was declined. Perhaps the myth is fueled by rates of prosecution, which may in fact vary inversely with education and income levels.
The New York Times just published Torn by Storm, [Louisiana] Families Tangle Anew on Custody. It’s a thought-provoking article that resonates with every family lawyer who practices in a hurricane zone like New Orleans - and South Florida.
The sheer scale of the disaster, the vast number of custody and visitation orders impacted and an indefinitely shut-down court system all make for a volatile, frustrating mix. Post-Wilma South Florida experienced it too, if to a lesser degree.
And now parents are giving - and should give - more thought to how evacuation scenarios should be handled.
Floridians should note that post-divorce relocations are not handled the same way in Florida as in Louisiana. And the Uniform Child Custody Jurisdiction Act is not the current law in Florida. (Florida repealed that statute when it enacted the Uniform Child Custody Jurisdiction and Enforcement Act.)
It should also be noted that the article’s brief, superficial analysis (probably by a nonlawyer) may not predict correctly the likely legal impact on jurisdiction of temporary relocations by the primary residential parent, especially subsequent to entry of the original custody and visitation order.
(Anyone caught up in a situation like this really should consult an attorney about the particular laws and facts of their particular case.)
Also, as in Louisiana, Florida statutes governing child custody, visitation and relocation do not explicitly articulate special rules in the event of hurricanes or other natural disasters.
Problem: After a divorce, one or the other parent may eventually relocate. If there are common minor children, one of the parents is then going to become a long-distance parent, with an altered in-person visitation schedule. This is the reality for many families of divorce.
Near-Solution: “Internet visitation” or “virtual visitation”. Although only a couple of states have formally recognized it in their statutes, web-facilitated visitation has become a fairly popular resolution by agreement and in fact.
This article in the Detroit News richly illustrates the character and quality of internet visitation as compared to telephone visitation.
Of course, internet visitation has its critics. Among other things, they argue that it casts the separated parent’s modified visitation in too rosy a light before the court ruling on the proposed relocation.
This blog has previously noted that prenuptial agreements have becoming increasingly popular. But a South Carolina news article raises a very valid point: you may need more than a premarital agreement.
Although the article is aimed at seniors contemplating second (or later) marriages, much of the advice is relevant for people planning to marry at any age.
A couple of often-overlooked points are well worth repeating:
Is paternity fraud rampant? That’s the proposition featured in a National Law Journal article.
The basis for the proposition is that, in numbers of cases, DNA tests eventually conclusively disproved paternity of the supposed father - after he was held to be the child’s father.
The article does not mention that, in the vast majority of cases, those men had the opportunity to prevent such a holding from being made, simply by requesting or submitting to DNA testing, before the holding was made - and shared with the child and the people that make up the child’s universe.
Why did they wait?
Now, an Illinois man is defending a pending paternity claim against him. But DNA testing won’t help him.
According to a Chicago Sun Times article, the man contends that he was merely a sperm donor and, therefore, should not be responsible for his biological children.
The man reportedly met the birth mother on a dating website, not a sperm donor bank. They apparently dated for a full year before they broke up.
And, later, he allegedly signed what sounds like an acknowledgment of paternity - while in a bank.
Although the article doesn’t mention the word “fraud”, that certainly sounds like the essence of the father’s defense.
Fraud as a ground to disestablish legal paternity. A potentially slippery slope.
A thirty-something year old man convicted of sexually assaulting a teenaged girl is appealing a Vermont family court’s denial of his parental rights to the baby born of his crime.
The biological father apparently argues that because he didn’t use force on the teenager, he can make a positive contribution to the baby’s life and, therefore, his crime should be overlooked.
The mother of the baby reportedly opposes granting parental rights to the man who sexually assaulted her.
Not surprisingly, this case poses an unlikely and previously unconsidered legal question in Vermont (and most other states). The appeal is expected to be heard before the state’s Supreme Court in the near future.
Read more about the case in this Barre Montpelier Times Argus article.
When people adopt a child, amazing transformations occur because of a court order.
People instantly become parents, just as though they had been biological parents. A child instantly gains parents, just as though he or she had been born to them.
Obviously, the child simultaneously sheds its legal relationship to its biological parents. Adoption creates a new family.
But what if the child’s biological parents had other children? Does the legal relationship between a child and its biological siblings end just because the child is legally adopted into a new family?
According to an article in the Philadelphia Inquirer, a court-appointed attorney for a child in foster care in New Jersey doesn’t think so.
The child’s attorney argues that, even though the child’s relationship to her biological parents will end when she is adopted by her foster parents, it is her right to continue to have visitation with her biological siblings, who were previously settled in another foster home.
Such a holding would seem to call into question the very nature of adoption though.
What happens to the family pet in a divorce? The answer may require looking beyond the present state of the law, in most states, in many cases.
As discussed in a previous post, legally, Fido is marital property, to be divided, along with the silverware and the bank account.
In reality though, every pet owner knows that a pet is entirely different, a member of the family. And no one but King Solomon would propose dividing a member of the family.
In practice, where the family has minor children, the pet normally lives with the children and the custodial parent. That rarely has to go to a judge.
But where the couple doesn’t have minor children, the law often falls short. According to this Memphis news story, it sounds like Tennessee has adopted the same rule of law as Florida.
But laws can be interpreted and applied in dramatically different ways. In this case, property division is described as being about possession and not custody.
It just looks like custody and visitation.
From an article in the Seattle Times.
He’s not the ordinary (alleged) deadbeat non-custodial parent.
In the 1980s, he made millions in biotech.
In 1988, when he married, his prenup generously promised 70% of the couple’s community property to his bride.
In 1996, when they divorced, both alimony and child support obligations were substantial.
But a court later upped the amounts - because it ruled that he had previously hidden assets.
He reportedly stopped paying support for his three children around 2002 / 2003. The arrears allegedly eventually climbed to $165,000.
His defenses were:
He was convicted of willful failure to pay child support.
The About portal has a couple of fascinating (and chilling) articles about how religous observance (or lack of same) may impact child custody awards in at least 18 specified states (Florida was not among them).
The articles are located at Religious Discrimination in Child Custody Settlements and Atheists Discriminated Against in Child Custody Cases.
The About articles were inspired by a scholarly law review article by UCLA law professor Eugene Volokh (incidentally, a fellow blogger at the Volokh Conspiracy).
Professor Volokh’s entire article may be read or downloaded from UCLA’s website.
All of the above articles call into question selected child custody awards on the ground that they arguably violate constitutional rights to free speech and freedom of religion.
It should also be noted that no less an authority than the US Supreme Court (and, following suit, the highest courts of various states) has upheld the right of fit parents, who are not abandoning, abusing or neglecting their children, to raise their children as they think best on fundamental privacy grounds.
According to a local TV news show, a man in neighboring Fort Lauderdale was arrested on charges of bigamy a few days ago .
You’re probably thinking: how could such a thing happen, today, in sophisticated South Florida?
Disclaimer: The rest of this post is not commentary on the above case in the news, about which I have no other information. Nor, obviously should this post be taken as excusing or defending bigamy.
Having said all of that, I get more than an occasional call from a long (5, 10, even 20 years) separated spouse who reports that they never got the final word on their divorce. Sometimes they say their spouse told them they would “take care of things”. Sometimes they say they (or their spouse) hired a lawyer to take care of it. Yada, yada.
If you’ve never been divorced before, the above scenarios may sound plausible. But they’re probably not!
Divorce is not normally a single, unilateral event. It’s a regimented process, one which usually requires participation by both spouses.
At the very least, the spouse who filed for the divorce should receive a final judgment, marking the end of the process. Here, in Florida, there is always at least one final hearing held (although some other states may waive this requirement under certain circumstances). Also, here in Florida, the final judgment is recorded.
So, if you were divorced, you should have gotten (or be able to get) proof positive of that fact. (Which is not to say that it may not be a bit of a nuisance. )
Of course, the reason people call a lawyer about the above dilemma is that they want to marry their new love - now.
There may be other folks out there in the exact same situation as those callers, who, for whatever reason, don’t call a lawyer. Who figure, whether optimistically or naively, that they are … must be divorced. Their spouse was taking care of it. They believe they hired a lawyer who took care of it. It’s been so darn long. Whatever …
Guess what? If they remarried, whether they know it or not, they may be bigamists.
Don’t drop the ball on your divorce.
Legislation is under consideration in Georgia which, according to reports, would dramatically diminish child support obligations.
According to an Atlanta Journal Constitution article, Georgia’s non-custodial parents think child support guidelines are too generous and Georgia’s custodial parents think they are inadequate.
Child support guidelines in Florida are undoubtedly different from those in Georgia. But non-custodial parents and custodial parents in Florida (and every other state) seem to feel the same way as their counterparts in Georgia.
To some extent, these attitudes are functions of human nature, reflecting attitudes of many divorced people toward their ex-spouses. Their children are just innocent casualties.
The problem with child support guidelines is that they are relatively cut-and-dried, simplified formulas.
The benefit of child support guidelines is that they are relatively cut-and-dried, simplified formulas.
If it weren’t for guidelines, however imperfect, family courts would be backed up far worse than they already are - just dealing with setting child support in divorce, support-only, paternity, dependency and other similar cases.
Guidelines are practical necessities.
To work well, however, they must be written with the proverbial typical middle class family in mind, with built-in mechanisms facilitating adjustment for lower income and higher income families.
They must also allow for deviations - under appropriate circumstances.
Given the complexity of coming up with guidelines in the first place, careful consideration is surely warranted before trading in guidelines that have stood the test of time. The welfare of children is at stake.
Should 911 call recordings and police accounts of victim statements at domestic violence crime scenes be admissible without in-court testimony from the victim? That is the question argued before the US Supreme Court last week.
The criminal defense bar argues, compellingly, that the defendant is unfairly prejudiced because he (or she) is denied their constitutional right to confront (that is, cross-examine) their accuser (the “witness”).
Domestic violence advocates counter, practically, that many victims of criminal domestic violence are too frightened (for themselves and their children) to testify against their abuser in court. After all, violence and intimidation are the calling cards of domestic abusers.
If criminal domestic violence convictions are held to require live testimony, domestic abusers will surely “turn up the heat” to discourage such in-court testimony - and more perpetrators of criminal domestic violence will go free - unless victims are forced to testify against their will.
Read more in the Los Angeles Times via Peninsula Peace and Justice Center and Dallas Morning News.
From the Concord (NH) Monitor:
Back in the 1980s, a New Hampshire judge awarded a husband to pay his (second) wife a sum of money as a property settlement in their divorce.
As sometimes happens, the husband never complied with the New Hampshire court order.
Fast forward to 1999 in Connecticut, where the husband brings suit challenging the validity of his Mexican divorce from his first wife and, as a result, his subsequent marriage and New Hampshire divorce from his second wife.
The Connecticut court ruled that the Mexican divorce was invalid.
Thereafter, a New Hampshire judge apparently refused to modify its prior divorce judgment to conform to the Connecticut court’s subsequent ruling. And the New Hampshire Supreme Court upheld him.
The husband then brought suit in federal court in Connecticut to enforce the Connecticut state court ruling nationwide, apparently intending to use it to his advantage in New Hampshire. The federal case was dismissed.
Fast forward to 2006. New Hampshire legislators bring something called a bill of address to remove the New Hampshire judge from the bench - because of his failure to honor the Connecticut ruling.
While the law does sometimes work in mysterious ways, in this particular case, one might speculate that other forces are working in mysterious ways.
Granted, the doctrine of full faith and credit generally requires states to honor valid judgments previously entered in sister states. But in this case, the Connecticut judgment was entered years after the New Hampshire judgment.
And, based on the limited information contained in the article, it is difficult to see the basis for the Connecticut court’s jurisdiction to enter a valid order.
This case illustrates an important real world observation: legal cases may be fought in a courtroom based on the law and the facts at hand but, under the right circumstances, the outside world and non-legal considerations may intrude - even if it takes years.
According to a Baltimore Sun article, in 2002, a Virginia court awarded custody of his son to a divorcing father, with one catch: the father’s gay partner had to move out. According to the article, Virginia family courts may issue conditional child custody rulings like this and thereby block a custodial parent from cohabiting.
So the father (and son) and the father’s partner moved to Maryland and established separate households. (The boy’s mother moved to Florida prior to the original Virginia ruling.)
The boy’s father has been trying to modify the Virginia ruling for two years. And now a Maryland appeals court has entered an order allowing the alternative family to reunite under one roof.
To obtain a modification in Maryland, the party seeking it must first show that there has been a change of circumstances since the previous order. Here, the cited change in circumstances was that a comfortable two income household had been downsized to a less comfortable one income household.
Interestingly, the change in circumstances was the direct result of the Virginia order.
The article mentions in passing that former counsel for the mother had accused the father of forum-shopping when he brought a modification proceeding in Maryland in 2004. That may be a legitimate argument in an interstate custody dispute.
For clarity and balance though, it should be noted that the boy’s mother opened the door to a change of state jurisdiction when she reportedly moved to Florida before entry of the original order in Virginia. Accordingly, she would be hard-pressed to argue that the father was not at liberty to relocate as well, effectively leaving Virginia with no further interest in the case.
The boy’s mother did not participate in the more recent Maryland modification hearing.
It is anticipated that the Maryland ruling will have a profound impact on the nation’s gay community.
According to a NY Times article, Maine now reportedly boasts the first statute expressly permitting animals to be protected under orders of protection.
Experts in domestic violence have long recognized that both threats against pets and actual abuse of pets is an effective means by which abusers often exert control over their intended human victims - and keep them close at hand.
Under Florida statute, abuse of a pet is specified as a factor a court may consider in entering an order of protection.
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