Archive for the 'Family Law' Category

New Jersey Might Require Equal Parenting Time in Child Custody Cases

One of the most controversial aspects of child custody is who has physical custody. Schedules can differ wildly from 90/10 (where one parent has custody 90% of the time and the other parent 10%) to 50/50 (50% time for each parent). Most judges and mediators will suggest an equal time split and then adjust the time allocated based on the case.

What is New Jersey’s Approach?

New Jersey state legislators have proposed bills that would make 50/50 custody the default child custody arrangement. The bills, S3479 and A5189, would make equal time between parents the default child custody arrangement, unless a parent can show that equal time would be harmful to the children. Currently, New Jersey courts do not presume equal parenting time. Instead, family law judges look to the best interests of the child. The “best interest” test involves a wide variety of factors, including but not limited to: stable environment, preference of the child, parents’ ability to agree and cooperate, and who had custody of the child(ren) prior to parental separation.

child custodyAt first glance, a law requiring equal time between parents doesn’t sound like a bad idea. If both parents have equal time with the children, there would be one less thing that parents fight over during a divorce. More importantly, the children would get to spend time with both parents and they wouldn’t feel cut out of one parent’s life.

Are There Any Downsides?

However, there are very real downsides to this approach. Making “equal time” the default prevents judges from making real decisions in cases where judicial discretion is most needed. In some cases, a parent cannot afford equal time. A parent with a busy work schedule needs to work more hours to pay for the child (and spousal) support. In other cases, a parent might be closer to a better school or have more options in education. Since the bill only allows parents to argue against equal time if there would be harm to the children, an automatic equal time schedule might actually cause more hardship on the family.

Mandatory equal time also puts domestic abuse victims at a significant disadvantage. The court would have to assume that equal time is best unless the victim can show that equal time would be harmful. Similarly, a parent with drug or alcohol problems would benefit from a default 50/50 custody schedule. Although the bill allows parents to argue against equal time if it would be harmful to the children, requiring a parent to overcome a legislative presumption creates an unnecessary uphill battle that shouldn’t exist in the first place.

Replacing child’s best interest with equal time for both parents also distorts the priorities family courts should have when determining child custody. The goal of child custody and child support is to ensure that the children are taken care of. Proponents of default equal time claim that changing the law will be a good thing because it will cut down on litigation and parental fighting. Child custody hearings should not consider these goals because it puts the parents’ money and feelings over the wellbeing of the children.

Making child custody automatically 50/50 between parents might sound like a good idea, but the plan is filled with hidden dangers. Default equal time puts greater emphasis on the parents’ needs over the children’s well-being. It would continue to victimize domestic violence victims. And it would standardize an area of law that often turns on individual circumstances and facts of the case.

What Does Tax Reform Mean for Your Divorce?

Last Friday, the House passed its version of tax reform. The Tax Cuts and Jobs Act, or the “Cut Cut Cut Act”, as the President calls it (and grammatical nonsense, as my spell check sees it), proposes a variety of changes to the tax code. The most significant changes include the removal of the state income tax deduction, which would result in significant tax increases for Americans that live in states that have income taxes. However, the “Cut Cut Cut Act” has a small, but significant change for Americans contemplating divorce: a reversal in how alimony, also known as spousal support, is taxed.

Alimony is currently tax-deductible for the spouse who pays alimony and taxable for the spouse who receives alimony. Under the House’s tax plan, the roles would reverse. The alimony paying spouse would no longer be able to deduct the amount from his or her taxes, but the spouse receiving it would be able to keep alimony tax-free. Divorce decrees issued before the bill passes would not be affected, but divorces after the bill passes would be affected.

tax reformThe bill proposes the change as a form of divorce reform: “The provision would eliminate what is effectively a ‘divorce subsidy’ under current law, in that a divorced couple can often achieve a better tax result for payments between them than a married couple can.” Lawmakers believe that the change would generate an extra $8.3 billion in revenue over a decade, since the spouse paying alimony is typically the one earning a higher income.

At first glance, this seems like a different way of accomplishing the same goal, but with more tax revenue and an emphasis on helping the lower income spouse instead of the higher income one. With alimony payments tax deductible, we create a larger pool of money for the receiving spouse. The bill proposes to do the same in reverse, by permitting the receiving spouse to keep more money, instead of encouraging the paying spouse to make larger checks.

The reality in family courts is more complicated though. For the lower income spouse to receive alimony, a judge must either order the higher income spouse to pay spousal support, or the spouses must agree to an alimony arrangement. The former is more expensive, as it involves discovery and a trial by the family court judge. The old rules, with alimony payment tax deductible, encouraged higher income spouses to settle their divorce because paying alimony meant paying less taxes. With that incentive gone, higher income spouses will be less willing to settle their divorce.

Divorce Reform That Accomplishes Little Except Pain

Proponents of the bill might argue that discouraging divorce is a good thing. It is in the public interest that couples stay married rather than divorce. Married couples can more effectively pool their resources to raise their children than a separated couple can.

The problem with this argument is that there is a difference between discouraging divorce and discouraging divorce settlements.  This bill would only accomplish the latter. Couples breakup for a variety of reasons, including adultery, finances, and domestic abuse. Couples do not break up because they can pay less taxes as a divorced couple than as a married couple. Without addressing the underlying reasons for a divorce, couples will still get divorced. The difference is that now they have one more reason to go to the courtroom instead of the bargaining table. This bill will not reduce divorces; it will only make them more painful.

Preventing Rapists from Obtaining Child Custody

Many child custody cases are heart-breaking, but the most horrific cases involve children who were forcibly conceived. The law struggles with what appears to be the easiest of questions: do rapists have child custody rights?

The Horrific Case of Tiffany and Christopher Mirasolo

In September 2008, 12 year old Tiffany and her sister slipped out at night to meet a boy. The boy’s older friend, 18 year old Christopher Mirasolo, offered to take the girls on a car ride. Instead, Mirasolo held them captive in a vacant house for two days. After raping Tiffany, he released the girls, but threatened to kill them if the girls reported him.

When Tiffany became pregnant, Mirasolo was arrested. He was sentenced to a year in county jail, but only served half a year, to look after his sick mother. Mirasolo was arrested for a second sex assault on a teenage victim two years later. He only served 4 years in prison.

Meanwhile, Tiffany struggled to support the son she gave birth to as a pre-teen. She skipped high school and went straight to work to support her boy. Unfortunately, Tiffany did not make enough money to support her child, so she applied for welfare. Shockingly, state welfare services would not help her unless she named who the father was. When Tiffany named Christopher Mirasolo as the father, state support service filed a support claim on Tiffany’s behalf. The support claim resulted in Tiffany sharing joint child custody with her rapist.

child custodyWhy Would the Judge Grant Joint Legal Custody?

Many states have guidelines and/or laws limiting how welfare is distributed. When Tiffany applied for welfare as a single mother, the state likely has an automatic process whereby it attempts to obtain child support from the father before providing welfare. The goal of course is to save taxpayer money and to transfer the obligation of supporting the child to the responsible party, the other parent.

In order for the state to order a man to pay child support, he must be proven to be the father of the child. Ordinarily, this would be a reasonable policy. The state cannot force people to be couples, but it can try to force people to be responsible for the offspring they create. However, all these reasonable policies and assumptions break down when it is obvious that the mother and father should not be in the same room. Judges have discretion to determine custody arrangements, but judges are bound by state law. Unless there is a statute that prohibits a judge from granting joint custody, most judges will err on the side of joint custody.

However, states vary in how they approach rape and child custody. In 20 states and the District of Columbia, a rape conviction is required before termination of parental rights is allowed.  Five states, Wyoming, North Dakota, Minnesota, Alabama and Maryland, do not have any laws prohibiting rapists from obtaining child custody. Since criminals are primarily state laws, the most the federal government can do is encourage states to enact laws barring child custody to rapists. The Rape Survivor Child Custody Act, signed by President Obama in 2015, gives states funds for passing laws that prevent convicted rapists from obtaining child custody. That’s the extent of the federal government’s involvement in custody and criminal cases though.

How Can We Change Course?

According to the American Journal of Obstetrics and Gynecology, about 5% of rape victims become pregnant as a result of rape; that’s about 32, 101 pregnancies per year. In percentages, the number is not high. However, each pregnancy because of rape brings out legal and ethical issues that impact both the mother and the child.

First, raising a child together is arguably a more intimate relationship than sex itself.  I have sat through custody hearings where the judge reminds young parents that “you will likely see each other at your child’s teacher-parent meeting, soccer games, college admission tours, wedding, and the birth of your grandchildren. The commitment you made when you decided to have a child together is not a commitment that ends in 18 years; it is a lifetime commitment.” Normally these are words of wisdom. Forcing a rape victim to forge this daily and emotional relationship with the rapist would only lead to more traumas and would likely reduce the victim’s ability to take care of herself, let alone her child.

Second, forcing the child to spend time with the rapist/father would endanger the child. If someone like Mirasolo was willing to kidnap and rape a 12 year old, there is no guarantee that he would not rape his child. Although the child in the Michigan case is a boy, rape is about power. Endangering the child’s life or threatening to do so would allow someone like Mirasolo to further control his victim. Even if professional supervised visitation is an option, it would not prevent the “father” from using the legal system to further exploit his control over the victim and the child.

If the father is convicted of raping the mother in a criminal court, it is imperative that the law extinguish the father’s custody rights. The risk to both mother and child are too great. Arguably, it might be in the best interests of the child to know where he or she came from. However, if the child wants to undertake that journey, they can do so when they are an older and independent adult, able to understand what rape is and why the man who conceived his or her existence is not a good person. If the judge does believe the child might have an interest in being raised by both the victim and the rapist, the judge should at least appoint an independent counsel for the child so that rapist’s arguments do not just outweigh the victim’s interests.

Can You Refuse To Vaccinate Your Child During a Divorce?

Rebecca Bredow was sentenced to a week in jail after she refused a court order to vaccinate her nine year old son. Bredow and her ex-husband had initially agreed to vaccinate their nine year old son, but Bredow later decided against it. Bredow argues that the parents had initially agreed not to give their child a vaccination and that it was her husband who changed his mind, in order to obtain leverage over their custody dispute. Their son will be in the care of Mr. Bredow until Ms. Bredow is released from jail.

Michigan allows parents of public school children to waive vaccination for their child, but the parents have to attend an education seminar on the benefits of vaccination first.  Health officials are worried that if children are not vaccinated, diseases such as measles will return. The reappearance of diseases that Americans have not been exposed to in a generation would result in a devastating outbreak. On the other hand, the parents want to waive vaccination are worried that the vaccines will give their children autism. However, scientific studies have largely debunked such claims.

vaccinateAlthough the medical benefits outweigh the falsely reported disadvantages of vaccinations, Bredow was not sentenced because of her opinions on vaccines; the legal facts determined her conviction.

Avoiding Confrontation with the Judge

The default in child custody is joint custody for both parents. People often mistake “joint custody” for “50/50%,” but family law judges will discourage parents from thinking about child custody in percentages. Children are not sacks of flour to be divided between disputing parties. Joint custody is the default child custody because the law presumes that it is in the best interests of the children to have both parents in their lives, not because it is fair to the parents. However, judges can deviate from the default joint custody if joint custody stops being in the best interests of the children.

Ms. Bredow made two mistakes that led to her week long jail sentence. First, she told the judge that it was against her beliefs to give her children vaccines. In a child custody case, the beliefs of the parents are not the deciding factor. In fact, asserting a personal belief in a custody battle can be harmful, since the judge might interpret that statement to mean that the parent is more concerned about his or her personal beliefs than the well-being of the children. In a child custody case, it is always preferable to relate the case back to the best interests of the children instead of arguing about other factors. Instead of saying that vaccines are against her beliefs, Bredow should have argued that the vaccines were potentially harmful to the children.

Second, Bredow publicly stated that she would refuse to obey the court order. There are many legal ways to challenge a court order. Bredow could have appealed the order. She could have filed a motion to reconsider the matter. Or Bredow could have chosen not to stipulate to an agreement in the first place. The worst thing to do though would be to agree to certain terms and then violate the court order to enforce the agreement that the parties made.

Can You Access Your Spouse’s Electronic Information During a Divorce?

During a divorce, ex-spouses will be tempted to use every advantage to “win” the case. Since spouses were often intimate during their marriage – even sharing private information with one another – fights between spouses can be nasty, brutal, and long. Many spouses will use passwords to access personal accounts to look for proof of wrongdoing. The Electronic Communications Privacy Act (ECPA) was enacted in 1986 to protect against such digital intrusion. Unauthorized access to email may carry severe penalties – in both divorce and criminal court.

Can I Record Phone Calls?

The answer will differ wildly depending on each state. Some jurisdictions, like North Carolina and Virigina, permit one party recordings. It is permissible to record a phone conversation as long as one of the parties knows and consents to being recorded. Other states, like California, require two party consent; both parties must know and consent to their conversation being recorded.

However, almost all states require a warrant before recording phone conservations in which the recorder is not one of the parties. If you plan to record your spouse and his or her suspected lover, think twice – you will almost certainly be breaking the law.

What If My Spouse Is Saying Nasty Things About Me on Social Media?

It is not uncommon for ex-spouses to say terrible things about the other on Facebook or Twitter to their friends and family. Obviously, any one-sided Facebook statues will likely result in the other spouse being alienated from his or her social circle.

Courts do have the power to order spouses to “add” their spouse to social media as a means of monitoring any potential libel. However, this only comes up if the couple has minor children. Children should not have to see their mother attacking their father’s character on social media. In that instance, the Court can require that the mother “add” the father to social media to ensure that the other parent does not derail normal parent-child relationships.

divorce_loginWhat If My Spouse Gave Me Their Passwords While We Were Still Together?

The ECPA prohibits “unauthorized” access or use of private information. However, if a spouse voluntarily provides the password, then you would have implicit consent. This implicit consent only goes so far though – if you use the password to access accounts other than the email it was meant for, there would likely be no consent granted. If a wife gives her husband a password to check her Gmail, but that same password works for her Wells Fargo account, implicit consent would only exist for the Gmail but not for the Wells Fargo account.

We Separated. Can I Still Read My Spouse’s E-mail with the Password They Gave Me?

When spouses give their passwords to one another, the law assumes that the password was for a specific purpose. If you have your spouse’s email password, it’s probably to check e-mail that the two of you received as a couple while you were married. If the marriage has ended, then the reason your spouse has given you the e-mail has likely ended to.