General legal information furnished as a service of Fort Lauderdale / West Palm Beach family law attorney Janet Langjahr
California has an interesting child custody bill pending.
Proponents of the bill would leave more of the burden of putting forth evidence on custody directly on the parties - and more of the burden of determining custody on judges, based on that evidence.
First, the bill aims to limit the use of formal custody evaluations by professional custody evaluators, typically therapists of some kind.
Second, the bill explicitly prohibits use of the much-debated and criticized term “Parental Alienation Syndrome” - and the word “alienation” - in custody evaluations.
Interestingly, opponents of the bill include several psychological associations - and the California Bar’s section of family law members.
I have posted several times about parental alienation syndrome and the debate raging over its legitimacy:
One California evaluator points out that some evaluators tend to find alienation in almost every case - and others rarely, if ever, find alienation. Unfortunately, the basis for their conclusions may have less to do with the case at hand than the expert’s point of view.
Many women’s groups contend that alienation claims have led to custody awards to abusers.
Many men’s groups contend that alienation claims have damaged, if not destroyed, their relationships with their children.
Sadly, there is truth in both positions.
And even some psychologists admit that often it is not possible for evaluators to tell whether alleged child victims of alienation are in fact victims of abuse - or coaching.
Read more in this San Bernardino Sun article: Bill wades in to custody battles.
One area of the law where states differ dramatically is in child support enforcement.
An Indiana man accumulated $120,000 in child support arrearages.
That’s a felony in Indiana, for which he was charged with three counts.
That man was sentenced to nine (9) years in prison for non-payment of child support.
To be followed by 15 years of probation.
Indiana likely has a much higher rate of compliance with child support orders than Florida does.
Read more in this WSBT TV article: Man $120,000 behind in child support gets 9-year sentence in South Bend.
Three Florida children were caught a week ago in the alleged planning stages of a school shooting incident such as at Columbine. The three thirteen year olds were reportedly arrested yesterday for conspiracy to commit murder, a felony.
The plot was uncovered through electronics: text messages, webpages, etc.
According to her sister, one of the kids tried to commit suicide a few days earlier, over her boyfriend’s breakup with her.
All three teens’ mental health was evaluated under Florida’s Baker Act.
The alleged ringleader was angry over being teased by peers. Although he was angry at two particular students, he posted on a website that he wanted to kill as many students as possible - and then themselves.
It has not yet been announced whether the teenagers will be tried as juveniles or adults.
Read more in this Daytona Beach News Journal article - Police: 3 DeLand school teens plotted murder and this Orlando Sentinel article: Fla. 7th-grader arrested for planning school shooting.
More marriage and divorce statistics.
According to the Pew Forum, among US residents, of all religions, followers of Hindu are the most likely to be married and the least likely to be divorced.
However, the sampling of Hindus was the smallest, so that was where the greatest margin of error existed.
Next least likely to be divorced were Jews, Muslims and Mormons, all coming in four percent higher than Hindus.
Next were Catholics, at one percent more likely to be divorced.
Read more in this India West article: U.S. Hindus Least Likely to Divorce: Survey.
UK attorneys are looking slightly into the future to predict that evidence collected from social networking websites like Facebook and MySpace will be admitted in divorce cases.
Absolutely. Just as happened with e-mails and online chats before social networking sites sprang up.
The value of the type of evidence likely to be developed will vary between so-called no-fault states / countries like Florida and fault-grounded states / countries.
But consider this UK case. A man was barred from any contact with his wife.
The man signed up on a social networking site. The social networking site sent an automated “friend request” to everyone on the man’s e-mail list - including his wife.
The man was sentenced to ten days in jail based on that “friend request”.
Could make the friendliest person think twice about approving “friend requests” …
Read more in this UK Citizen article: Solicitor warning over Facebook flirting.
The place is Mississippi.
A local man, a judge and city attorney, reportedly faces contempt of court for failing to pay past due child support of $1,500.
The man contends that he can’t afford to pay it and that it is an unreasonably high amount of child support, more suited to a Hollywood celebrity than a local judge and attorney.
The man may think that the judge who presided over his divorce is biased against him. That judge awarded custody of the man’s baby to its mother.
The man expects to be jailed for contempt.
On the other hand, the judge who originally drew his case recused himself.
All concerned are awaiting appointment of another judge to hear the case.
In an interesting side note, the mans’ wife and her cousin were arrested for allegedly stealing computer disks from the man’s law office.
Read more in this Jackson [MS] Clarion-Ledger article: Judge recuses himself from colleague’s child support case.
According to the Pentagon, only 3.3% of military couples divorce. The military attribute this to large amounts of support that the military provides to military couples.
Some find the numbers surprising considering the currently prolonged, stressful separations during deployments in Iraq and Afghanistan.
Others find the numbers misleading in that they fail to reflect the number of couples who hit the skids in the military but who don’t actually divorce until after discharge.
Others challenge the numbers because the army does not actually follow the same couples over time, but counts how many military couples are married each year.
And, of course, the military doesn’t count unhappy couples.
Going against the tide of this report, military women are now divorcing at a much higher, and rising, rate of about 8%, compared to 2.6% for military men.
Read more in this Forbes article: Military Divorce Rate Holding Steady.
No more is it true that “where there’s a will, there’s a way”. No need. At least in India.
Now, if an Indian living abroad wants easier options, he’s got them.
A Delhi court has agreed to allow a New Jersey resident to appear at his divorce hearing(s) via video conference.
This could simplify and speed up about twenty percent of divorce cases in India where one party doesn’t live in the country - or near the city where the divorce is taking place.
One perk of divorce by videoconference is that the fallen-out couple don’t have to come face to face again.
On the other hand, that is also a negative in that last ditch reconciliations won’t be inspired either.
Read more in this IndiaTimes InfoTech article: Want divorce? Go high-tech.
Nothing else has stamped out domestic violence yet.
One relatively recent, creative approach established in Massachusetts: educational theater.
Theater with a message. Plays depicting different types of domestic abuse (sexual, violent, verbal, etc.) - and targeting different audiences (civilian vs. military, adults vs. children, etc.).
The rationale is that an engaging story carries more impact than a thousand lectures.
The programs educates both victims and “bystanders” in a position to help, highlighting warning signs and illustrating how to be part of the solution.
Performers lead discussions after each performance.
Read more in this Woburn [MA] Daily Times Chronicle article: Fighting domestic abuse through theatre and the Deana’s Educational Theater website.
The Florida Department of Children and Families receives about 1,000 reports of abuse per month in Lee County that must be investigated.
Investigations must begin within twenty-four hours, three if a child is believed to be in imminent danger.
An investigation takes at least 4 hours of interviews with the child, the person reporting the abuse, family members, neighbors, teachers, etc.
Investigators typically investigate two reports per day.
Background checks of every adult in the home are par for the course.
Investigators are college-educated and receive ten weeks of training plus substantial oversight and mentoring.
And still children die of abuse or neglect.
One six year old child recently died - after three separate reports of abuse, including one from his school.
DCF investigated but concluded that the child was not at risk and, later, at low risk.
That child was later killed by his stepfather, who now faces criminal charges.
Too little, too late.
Read more in this News-Press guest editorial: DCF needs community’s help protecting children and this WXTX Fox 4 News Team Coverage piece: Jenkins Case File.
Once upon a time, non-parents might have visitation or even custody rights, most commonly grandparents.
Then the US Supreme Court ruled that such third party rights trampled the rights of parents, which should be superior - provided the parents are fit parents.
Since then, some states have tried fashioning constitutional statutes granting third parties visitation or custody rights.
The most popular third parties are still grandparents. But there are other beneficiaries as well.
Stepparents. And the gay parent who is not the biological parent.
Utah is one such unlikely state to pass a new law allowing a non-parent to seek visitation or custody rights.
Arguably, in defiance of local court rulings.
Read more in this Salt Lake Tribune article: Measure would boost rights of stepparents.
In many divorce cases, the most thorny property division question is: what to do with the marital home?
That is especially likely in a depressed real estate market like the current one.
One commonly agreed to option is for the spouse who wants to remain in the house to refinance the other spouse’s name off the mortgage.
But what if the occupying spouse doesn’t have sufficient income or credit to accomplish what was agreed to?
Well, that may depend on what state you live in.
A Virginia women is apparently facing jail time for not being able to refinance as agreed.
Due to the downturn in the real estate market, she also has been unable to sell her way around the refinancing obligation.
Read more in this WAVY TV 10 (VA) article: York Co. woman faces possible jail time for failing to refinance, sell home.
A millionaire and his wife are pitted against each other in an ongoing custody battle … over their dog.
The “father”, who has no children, has spent over $60,000 to win custody of the pooch.
At first, the couple engaged in roughly equal timesharing, by agreement.
Then the “mother” accused the “father” of abuse.
The judge didn’t buy it, and the “father”’s timesharing resumed …
Until the “mother” moved to Connecticut.
Since then, the “father” has had no time with their pet.
The “father” is filing an appeal.
Read more in this New York Daily News article: Fur flies over dog custody.
When children are taken into foster care due to alleged abandonment, abuse or neglect, it sets in motion a series of events, including various hearings in juvenile dependency court.
Juvenile dependency court is unlike any other court.
Many of the families of removed children are indigent. Parents attorneys’ and children’s attorneys are typically court-appointed. They handle hundreds of cases per year.
They barely know their clients, let alone the parents and the family’s circumstances.
Yet these overburdened court-appointed attorneys are the just about the only thing standing between children - and removal from their parents and families.
The courts don’t allow much time for parents to defend return of children to their families. In California, sometimes just five minutes or less.
That’s all the time a judge has to get the facts and determine the best outcome. Informed only by attorneys and case workers who have inadequate time and too large caseloads to sort out the truth and come up with solutions.
And so children are removed from their homes … whether or not they should be …
Read horror story after horror story in this troubling Mercury News article: How rushed justice fails our kids - BROKEN FAMILIES, BROKEN COURTS: A MERCURY NEWS INVESTIGATION.
A father has not seen his son for more than a year.
The boy’s mother took the boy on a vacation to India.
And never returned.
India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. And India does not view child abduction as a crime.
As a result, India law enforcement reportedly will not act in cases such as this father’s.
As his last resort, the father has sought the aid of India’s apex child’s rights council because, he argues, his son has been denied contact with his father. He has also contacted the National Commission for Protection of Child Rights.
The boy in this case is a US citizen, and lived in the US for years prior to his abduction. Even under Indian law, his case should be heard in the US.
But …
Read more in this Telegraph - Calcutta article: NRI dads fight for ‘abducted’ children.
About half of American marriages end in divorce.
But they tend to last a bit longer today (8 years) than in the past (7 years).
Teen marriages, the most susceptible to failure, have declined.
Most couples are tending to marry a bit later in life.
About two-thirds of all American breakups are initiated by the wife.
Couples who are very demonstratively affectionate in public settings are most likely headed for trouble.
Modern divorces can be nasty and expensive.
One state stands out in American history as “divorce capital of the nation” around the turn of the 20th century: South Dakota.
At one point, the state’s residency requirement was just three months and several different grounds for divorce were available. In an era when residency was typically one year and the only ground was adultery.
Examples of grounds for which divorce was granted in the South Dakota of that era include:
For reasons like the above, South Dakota attracted unhappy wealthy couples from around the nation, who were in search of a quick, private divorce.
More than six thousand divorces were entered over a twenty year span. Two-thirds of them for people from out of state.
The divorce industry spurred the local real estate market, because couples needed a local home to establish residency. And contributed to relatively high local income.
To commemorate South Dakota’s historic distinction, the Minnehaha County Historical Society would like to erect a marker in Sioux Falls.
Read more in this KXMC TV Minot [SD] News article: Marker would recognize “divorce capital” and this Rapid City [SD] Journal article: Sioux Falls: Divorce capital of the world.
Last month I posted Canada to Enforce Premarital Agreements Crossing into Religious Issues.
In that case, the Canadian Supreme Court ordered a man to pay his ex-wife nearly $50,ooo for making her wait 15 years for a religious divorce - in violation of their prenuptial agreement.
The Canadian high Court based its ruling both on the contract and a Canadian statute that penalizes spouses who hold up religious divorces.
Now the ex-husband is seeking an appeal to challenge the statute as interfering with freedom of religion and as being discriminatory, because he argues that it targets Jews.
It is anticipated that the Canadian Supreme Court will decline to hear the appeal, possibly because the ruling was supported on contract grounds independent of the challenged statute.
Read more in this Montreal Gazette article: Man challenges divorce law.
Hawaii, which has a poor track record of collecting delinquent child support, has decided to crack down on deadbeat noncustodial parents.
The state has hired a paralegal and an investigator and is currently building and prosecuting misdemeanor and felony cases for chronic nonpayment of child support with insufficient justification.
The crackdown targets those significantly in arrears and who are well able to meet their legal obligation.
The new measures are the talk of Hawaii and are in fact motivating noncustodial parents to make payments toward their support obligation.
Prior to the crackdown, only a handful of cases were prosecuted in the last quarter of a century, even though the law permitted such prosecutions.
This new initiative is funded by a federal grant of funds.
Read more in this Honolulu Advertiser article: Indictments rattle deadbeat parents.
The family court’s mission is to make child custody determinations based on the best interests of the child. But some aspects of child rearing are not black and white and, arguably, not purely parenting decisions.
Take religion. An informal case survey suggests that custody battles are on the rise and that religion is increasingly the issue sparking the custody dispute.
How should the Family Court take these differences into account in custody awards? Which factors should tip the balance which way?
Free exercise of religion is constitutionally protected. This may cause judges to shy away from preferring either parent based on that parent’s exercise of religion.
But both choice of religion and degree of devotion impact on lifestyle of the child. And a child’s lifestyle is very much a parenting matter which is a legitimate concern of the Family Court.
Sampling of tough issues addressed in some recent cases:
According to the survey, judges are as likely to favor the religious parent as the secular parent.
Read more in this New York Times article: Religion Joins Custody Cases, to Judges’ Unease.
Here in South Florida, we have a lot of unmarried senior couples, in “second-time around” relationships, cohabiting with each other. The reasons for not remarrying vary.
Although Florida is not a common law marriage state, bare cohabiting can leave some important things up in the air - or up to a judge. A cohabitation agreement may avoid either outcome and facilitate clarity and control.
The agreement can set out household financial arrangements and expectations in the event of death or breakup.
The agreement, with companion documents, can give a cohabitant medical decision-making authority they would not otherwise have.
The agreement, with companion documents, can give the right to manage business / financial affairs of the cohabitant in the event the cohabitant is unable to do so.
The agreement, with companion documents, can provide for disposition of part or all of an estate to a cohabitant.
Little is automatic for an unmarried couple and extra effort may be required to “take care of” the surviving cohabitant - if that is the intention.
A cohabitation agreement is a starting point toward that goal, but not the ending point.
Although it is not specfic to Florida, more can be read in this ElderLawAnswers’ article - Cohabiting Seniors: Protect Your Rights.
Florida Husband (former attorney) ordered to pay alimony.
Ex-Wife diagnosed with terminal cancer.
Ex-Husband reportedly stops paying alimony.
Upon requests for payment, ex-Husband allegedly asked “aren’t you dead yet?”
Ex-wife needs alimony for medicine, housing, etc.
Ex-wife reportedly tried to move the case closer due to health issues. Judge allegedly refused.
An attorney has now offered to help ex-wife without charge.
The reader is left to wonder why an income deduction wage garnishing order was not entered previously.
Sadly, enforcement remains the Achilles Heel of the legal system for far too many dependent former spouses and children. Even those who aren’t dying of cancer.
Read more in this Tampa Bays WTSP-TV 10 news article: Ex-husband stops alimony payments for terminal cancer patient.
A Tennessee husband was just granted a divorce and shared custody of his kids under unusual circumstances. His wife was not present.
She, allegedly struggling with a drinking problem, had an affair with her 17 year old student, after having another affair with a woman. Her own family described her as “troubled”.
She would reportedly lock herself in her bathroom and drink, go into rages against her husband and even her children, eventually abusing one of her kids for revealing details of her affair.
The husband is charged with killing the teenager involved in the affair.
The wife is said to have absconded with their children months ago.
The Tennessee court has appointed an attorney ad litem and a guardian ad litem to search for and make recommendations for the best interests of the couple’s boys.
Every divorce is unique. And some are more complicated than others.
And some cases put judges in the unenviable position of having to make very difficult decisions.
Read more in these Knoxville News Sentinel articles: McLean granted divorce - Judge orders attorney to search for children of slaying suspect and Judge grants McLean divorce, orders search for children.
One hundred and one Florida women died of it in the first six months of 2007.
Domestic violence.
About forty-five of the women fleeing it and sixty-five of their children in central Florida end up in a shelter for safety. One Orlando shelter is building a children’s after-care center, a school and a daycare center.
The first step to safety may be getting to a shelter. (If an abuser discovers their location and comes, he or she faces stiff legal penalties.) Registration can be anonymous.
Domestic violence knows no socioeconomic boundaries. A shelter’s CEO describes how the husband of a board president of a girl’s school, a wealthy woman, and her daughter were murdered by the woman’s husband.
Read more in this Orlando Sentinel article: Sheltering women in crisis.
French-Israeli father. Turkish mother.
Child had triple citizenship, but was born and raised in Israel.
Mother and child depart for Turkey to spend a holiday with Mother’s parents in 2004.
And stay there. Permanently.
An Israeli court promptly orders the return of the child to Israel under the Hague Convention in the Civil Aspects of International Child Abduction. Both Turkey and Israel are parties to the Hague Convention.
The Turkish courts agreed with the Israeli courts and upheld consistent orders through two levels of appeals.
The European Court of Human Rights in Strasbourg also agreed with the Israeli courts.
But the little girl remains in Turkey.
For months, the father had no contact with his child.
Then, he was allowed biweekly visits for a time.
But the little girl remains in Turkey.
This where both involved countries are members of the Hague Convention.
Read more in this Turkish Today’s Zaman article: [FAMILY TRAGEDY] From Tel Aviv to İstanbul: One man’s search for his daughter.
A four year old Pennsylvania girl is the subject of an order awarding joint, rotating custody of her. The child will move from one custodian to another every seven days.
Not typical, but not unheard of either.
What is unusual is who the alternating custodians are: the child’s two maternal grandmothers.
The little girl’s father murdered her mother and then himself in the middle of their own custody battle, leaving the child an orphan.
The grandmothers settled on this custody arrangement in the middle of a custody trial. They also agreed that one grandfather, a Florida resident, would have visitation rights and be permitted to participate in the little girl’s therapy sessions.
The arrangement may need to be modified when the child starts school in a year. But, at least until that time, the two grandmothers share parental responsibility.
Read more in this Lockhaven [PA] Express article: Joint custody of 4-year-old to continue.
An Oregon man is building up a criminal record. And that is putting the brakes on his divorce.
Over the last eight years since his divorce case was filed, the husband has allegedly been attempting to hide assets from his wife.
Upon learning of the supposed fraud, the wife renounced a settlement agreement.
The wife draws support for her position from fact that the husband, under oath in the divorce case, denied owning an interest in a resort owned by his half-brother - but then filed a separate lawsuit asserting a multi-million dollar interest in the resort.
Unfortunately for the husband, his brother testified under oath that the husband intentionally sought to divert income from his own business to the resort - to hide it from his wife in the divorce case.
Now the husband alleges that he purchased an ownership interest in the resort. And the brother contends that he purchased only an interest in the stream of net income.
The husband reportedly refused to enter a written agreement. After all, that could be found and used by the wife in the divorce case.
In the suit against his brother, the Court awarded the husband a substantial (but fixed) sum of money - but no ownership interest.
Part or all of the amount of the judgment may be subject to property division between the spouses - or, possibly, allocated to support.
Read more in this Salem, Oregon Statesman Journal article: Facing charges isn’t new for property owner.
Divorce doesn’t hurt children.
Post-divorce conflict between parents does.
A recent study concludes that children of amicable divorces are significantly better adjusted than children of high conflict divorces.
Insults, anger and disparagement in front of the children is all harmful to them.
Children feel under attack themselves when one of their parents attacks the other.
Children often feel responsible for their parents’ divorce, especially if their parents argue about them.
If parents must argue, they should do it privately.
Read more post divorce parenting tips in this Bradenton Herald article: Helping your child cope with divorce.
Some legislators in South Dakota are working to revamp much of the state’s child custody laws that reportedly are not serving the divorced parents of the state, or their children, well. Their stated goal is to focus on the best interests of kids.
Under current South Dakota law, temporary custody of children is apparently awarded to the parent who has been the primary caregiver for the thirty days prior to filing. Unfortunately, a snapshot of such a short slice of life may not accurately reflect which parent has been the primary caregiver over the longer haul.
The new proposed legislation increases the thirty day period to twelve months. That is a much more realistic indicator.
Under current South Dakota law, violation of visitation or custody orders may be punished by fines or imprisonment. Judges have allegedly withheld those sanctions as too harsh.
The new proposed legislation allows more flexible remedies / sanctions, such as ordering attendance of parenting classes, awarding makeup visitation time and awarding legal fees.
Interestingly, the new proposed legislation contemplates “joint legal custody” (what Florida calls “shared parenting responsibility”) but not that both parents “equally participate” in major decisions concerning their children.
Many South Dakotan legal commentators, however, anticipate increased litigation over less than perfect implementations of joint legal custody.
Beware state-specific definitions.
Read more in this South Coast Massachusetts Standard Times article: Child custody, visitation issues considered.
A Michigan senator believes divorce runs roughshod, without any consideration - over pets.
Under the current law of most states, pets are relegated to personal property status.
“You want Rover? … I’ll take the silverware then. Deal.”
The senator has sponsored legislation to remedy that, requiring divorcing spouses to list all of their pets and when they were adopted.
Further, it would require the spouses to file a custody plan for the pet with the court - or take the matter up before the judge presiding over their case.
The Michigan senator was reportedly inspired by Wisconsin legislation that he read about.
But most Michigan commentators have criticized the proposed legislation as adding to the problem of too much family court litigation rather than helping solve the problem.
Oddly enough, the senator does not have a pet. He must think he has a lot of pet lovers among his constituency …
Read more in this Grand Rapids Press article: Bill dictates pet custody in divorce cases.
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