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Hague Dismissal Not Warranted on
Summary Judgment Motion
In Philippopoulos, v. Philippopoulou, 461 F.Supp.2d
1321 ( N.D. Georgia, 2006) the father a citizen of Greece, petitioned,
pursuant to the Hague Convention for the return of his minor daughter
allegedly wrongfully relocated to the United States by her mother. The
Respondent's moved to dismiss on the basis of her affirmative defense that
the petition should be dismissed because it was not timely filed. Petitioner
and Respondent were married in Greece and their daughter was born there. On
July 1, 2005, Respondent and the child left the family's home in Greece on a
planned vacation to the United States to visit Respondent's family in
Georgia. Petitioner and Respondent agreed that Respondent and the child
would return to Greece on August 15, 2005. On July 4, 2005, three days after
departing Greece, Petitioner was served with an Extra-Judiciary Protest and
Notice formally notifying him that Respondent intended to remain with the
child in the United States and not return to Greece as she had previously
agreed. On November 1, 2005, Petitioner filed an application with the
National Center for Missing and Exploited Children (the "NCMEC") for the
return of the child to Greece. On November 7, 2005, the U.S. State
Department sent Respondent a letter notifying her that Petitioner had filed
a request for the child's return. On November 28, 2005, the NCMEC contacted
Respondent's former counsel, who indicated that Respondent was willing to
participate in a mediation to resolve the dispute. On March 24, 2006, the
mediation took place, but was unsuccessful. In May 2006, pursuant to
Petitioner's request, the NCMEC began a search for pro bono counsel for
Petitioner in the United States. On July 18, 2006, Michael J. Sullivan
agreed to represent Petitioner. On August 11, 2006, Petitioner filed his
petition in this Court for the return of his child. The Court found that
Petitioner set forth a prima facie case of wrongful retention under the
Hague Convention. It was undisputed that the child's habitual residence
prior to visiting the United States was Greece and that Petitioner had
custody rights pursuant to Greek law and was exercising them at the time of
the alleged wrongful retention. Article 12 of the Hague Convention mandates
the return of a child who has been "wrongfully removed or retained in terms
of Article 3 and, at the date of commencement of the proceedings before the
judicial or administrative authority of the Contract state where the child
is, a period of less than one year has elapsed." Even if more than one year
has elapsed, the child shall be returned "unless it is demonstrated that the
child is now settled in its new environment." Respondent contended that the
child should not be returned to Greece because the petition was filed more
than one year after the wrongful retention of the child and the child is
well-settled in her new environment. Citing In re Cabrera, 323 F.Supp.2d
1303, 1303 (S.D.Fla.2004), Respondent argued that the retention of a child
becomes wrongful as soon as the non-retaining parent becomes aware of the
retaining parent's true intention not to return. She argued that Petitioner
became aware of her true intention not to return on July 4, 2005, when he
was served with the Extra-Judiciary Protest and Notice, over one year before
he commenced this action on August 11, 2005. Petitioner contended that his
petition was timely because the wrongful retention did not begin until
August 15, 2005, the date upon which Respondent failed to return to Greece
as she had agreed. The Court agreed with Petitioner and found that his
petition was timely filed. Under the Hague Convention a parent whose child
is wrongfully retained from its home country has one year from the date upon
which the wrongful retention began to file suit for the child's return. The
court noted that while Petitioner probably could have filed suit immediately
upon learning of Respondent's intention to wrongfully retain the child,
Petitioner also had the right to wait to file suit until after the retention
became wrongful. Because Respondent had agreed to return the parties' child
to Greece on August 15, 2005, her retention of the child did not become
wrongful until that date. Thus, Petitioner had until August 15, 2006,
to file this action. Because he filed his petition before that date,
Respondent failed to carry her burden of showing that the petition should be
dismissed for untimeliness. The Court also noted that under the Hague
Convention, even if the petition was not filed within twelve months of when
the retention became wrongful and the child is well settled, the Court has
the discretion to return the child to Greece. Citing Antunez-Fernandes v.
Connors-Fernandes, 259 F.Supp.2d 800, 815 (N.D.Iowa 2003). Therefore,
Respondent failed to show that even if July 4, 2005, were the relevant date,
there was no set of facts under which the petition could be granted. The
Court thus found that Respondent had not established the Article 12 defense
of timeliness as a matter of law, and denied the motion to dismiss the
petition at this time on the basis of that defense.
Q & A about Common Law Marriage
States
Today, only ten states and the District of Columbia recognize
common-law marriage entered into within their boarders They are Alabama,
Colorado, Kansas, Montana, Oklahoma, Iowa, Rhode Island, South Carolina,
Texas, Utah and the District of Columbia. New Hampshire recognizes common
law marriages only for probate purposes and they are effective only at
death. Since 1990 Georgia, Idaho, Ohio, and Pennsylvania have abolished
common law marriage, but recognize common law marriages entered into within
their boarders before it was abolished.
More information .
In Didur v Viger,
392 F.Supp.2d 1268 (D. Kansas, 2005) the Mother filed a petition for return
of her child to Canada pursuant to Hague Convention. One of the four
defenses is the "grave risk" exception, under Article 13(b) of the Hague
Convention, which allows a country to withhold the return of an abducted
child if "there is a grave risk that his or her return would expose the
child to physical or psychological harm or otherwise place the child in an
intolerable situation”. The District Court, held that the father established
that the child's return to his mother's custody in Canada would expose him
to grave risk of physical or psychological harm. The Canadian child welfare
authorities documented incidents in which the mother repeatedly drove while
drunk with the child, the mother was drunk in public with the child
alongside her, the mother was intoxicated repeatedly while pregnant with the
child's younger sibling, the mother refused to parent the child, and the
mother suffered from mood swings and depression, the child was unable to
obtain counseling in Canada, the mother sought to have her parents obtain
custody of child, and the Canadian authorities recommended against returning
the child to Canada and stated that he would be placed in foster care if he
was returned.
In
Lashkajani v. Lashkajani,
2005 WL 1529936 (Fla.), decided on June 30, 2005, the Supreme Court of
Florida held that prevailing party attorney's fees provisions in prenuptial
agreements, concerning litigation over the validity of the agreements
themselves, are enforceable. Because prenuptial agreements regarding
post-dissolution support are enforced "as a matter of contract," and
prevailing party clauses have long been enforceable in ordinary contracts,
the court found no reason not to enforce them. While these clauses
technically involve an expense incurred during marriage, they are more
closely related to enforcing the prenuptial agreement, which distributes
assets after marriage, than they are to ensuring that each spouse supports
the other during the marriage. Valid prenuptial agreements regarding
post-dissolution support are contracts.
In Didur v Viger,
392 F.Supp.2d 1268 (D. Kansas, 2005) the Mother filed a petition for return
of her child to Canada pursuant to Hague Convention. One of the four
defenses is the "grave risk" exception, under Article 13(b) of the Hague
Convention, which allows a country to withhold the return of an abducted
child if "there is a grave risk that his or her return would expose the
child to physical or psychological harm or otherwise place the child in an
intolerable situation”. The District Court, held that the father established
that the child's return to his mother's custody in Canada would expose him
to grave risk of physical or psychological harm. The Canadian child welfare
authorities documented incidents in which the mother repeatedly drove while
drunk with the child, the mother was drunk in public with the child
alongside her, the mother was intoxicated repeatedly while pregnant with the
child's younger sibling, the mother refused to parent the child, and the
mother suffered from mood swings and depression, the child was unable to
obtain counseling in Canada, the mother sought to have her parents obtain
custody of child, and the Canadian authorities recommended against returning
the child to Canada and stated that he would be placed in foster care if he
was returned.
In
Lashkajani v. Lashkajani,
2005 WL 1529936 (Fla.), decided on June 30, 2005, the Supreme Court of
Florida held that prevailing party attorney's fees provisions in prenuptial
agreements, concerning litigation over the validity of the agreements
themselves, are enforceable. Because prenuptial agreements regarding
post-dissolution support are enforced "as a matter of contract," and
prevailing party clauses have long been enforceable in ordinary contracts,
the court found no reason not to enforce them. While these clauses
technically involve an expense incurred during marriage, they are more
closely related to enforcing the prenuptial agreement, which distributes
assets after marriage, than they are to ensuring that each spouse supports
the other during the marriage. Valid prenuptial agreements regarding
post-dissolution support are contracts.
In Lofton v. Sec'y of Dep't of Children & Fam.
Servs., 358 F.3d 804 (11th Cir. 2004) (reh'g en
banc denied, 377 F.3d 1275 (11th Cir. 2004) the Eleventh Circuit Court of
Appeals upheld the constitutionality of a Florida law that bars homosexuals
from being eligible to adopt. It found that the law rationally related to
the state's claimed interest in assuring an optimal home environment for
children, and rejected the argument that the Supreme Court's ruling in
Lawrence v. Texas recognized a fundamental right to private sexual intimacy
so as to require a strict scrutiny examination of the statute.
In Perlow v. Berg-Perlow,
875 So.2d 383, 29 Fla. L. Weekly S130, 29 Fla.
L. Weekly S227,(Supreme Court, 2004) the Florida Supreme Court admonished
judges to cease the widespread practice of allowing lawyers for the parties
to draft judicial orders in divorce cases. The Court held that judges must
show each side the other side's proposed judgment and allow both sides to
file objections. It admonished trial judges, "when possible," to draft their
own findings of fact and conclusions of law. In Perlow, the trial court
adopted verbatim the language written by the wife's lawyer. He barred
the husband from having contact with his son for six years, until he was 14,
and granted sole custody to the wife who was living in Israel. The Supreme
Court reversed the 4th DCA decision which upheld the judgment, and remanded
the case to the trial court. In the main opinion the Supreme Court said "the
practice of a trial judge adopting verbatim a proposed final judgment
without making any modifications, additions or deletions, and without making
any comments on the record prior to entry of the final judgment is frowned
upon. "When the trial judge accepts verbatim a proposed final judgment
submitted by one party without an opportunity for comments or objections by
the other party, there is an appearance that the trial judge did not
exercise his or her independent judgment in the case."
In Rosenbloom v Rosenbloom,892
So.2d 531, 30 Fla. L. Weekly D147(Fla. 4th DCA, 2005), the 4th District
Court of Appeals held that the trial judge did not improperly delegate his
decision-making authority on attorney fees, because he gave oral
instructions before the parties drafted their proposals and because his
decision incorporated elements from both sides. It distinguished the case
from Perlow v. Berg-Perlow. The 4th DCA held that the wife was entitled to
$267,000 in attorney fees rather than the $672,000 she requested from her
ex-husband. Since the Circuit Judge made"significant corrections, deletions
and additions" to the proposed orders submitted by both sides, he did not
delegate his independent decision-making responsibility to either party. The
appellate court noted that, consistent with the Supreme Court's opinion in
Perlow, the judge gave the parties three months to review each other's
proposals. It also noted that the wife did not raise the issue in her appeal
of insufficient time to review her husband's proposed order. The husband, a
physician, argued at trial that fees for his former wife's attorneys should
not have exceeded $227,500 based on 650 hours at a flat rate of $350 per
hour. The trial Judge awarded the wife $267,262 in attorney fees. He
rejected her calculation of $672,257 for almost 2,000 hours billed by her
attorneys, including more than 1,000 hours at $500 per hour for her lead
attorney. The court calculated its fee award based on $300 per hour for the
lead attorney for 650 hours and lesser amounts for the three other attorneys
that worked on her case, for a total of a little more than 1,000 hours. The
court said that since the trial Judge had made initial oral pronouncements
instructing the parties what to include in their proposed orders, he did not
abuse his discretion by denying the wife’s request for additional oral
findings. The court gave direction at closing as to what each side should
include in their respective proposals. The procedure he utilized resulted in
entry of an order, after an appropriate deliberative period had lapsed, with
significant corrections, deletions and additions to those submitted by both
sides and did not create the appearance that he had delegated to one side or
the other his independent decision-making responsibility. The 4th DCA
rejected the wife’s argument that the hourly rate of $300 used by the trial
court to calculate her fee award was less than the $350 rate that her former
husband's expert testified was reasonable. "A trial court has broad
discretion in awarding attorney's fees in a dissolution case," "The court,
as the trier of fact, is not bound by testimony of expert witnesses, even
where unrebutted."
In Altman v. Altman,
873 So.2d 523, 29 Fla. L. Weekly D1218 (Fla. App. 4 Dist. May 19, 2004) the
4th DCA held that a circuit court judge may not deny a request for all
attorney fees solely because the attorney for a party in a divorce case is
represented by another, prior ex-spouse. The court unanimously reversed the
Circuit Judge's order denying Janis Altman's request for fees for her
attorney, who was her second husband. "The trial court was concerned that the obligation for fees was not a
'legitimate debt' and that the former wife would 'not be ultimately
responsible' for the fees," "This was not a valid basis to deny all fees."
The case was remanded the case with instructions for the trial judge to
consider awarding fees.
In Wight v. Wight,
880 So.2d 692, 29 Fla. L. Weekly D1046 (Fla. App. 2 Dist. Apr 28, 2004) the
2d DCA held that clients in a dissolution action cannot recover attorney
fees incurred during litigation over the amount of fees owed. The court
partially reversed the Circuit Judge's order awarding Melissa Wight attorney
fees because the $27,833 included reimbursement for time spent arguing how
much her former husband owed for litigating a motion to enforce their
settlement agreement. She returned to court after the dissolution was final
because he was not complying with their divorce agreement. She filed motions
to enforce the settlement after he failed to take out a $500,000 life
insurance policy as security for his monthly $3,000 child support
obligation. She also asked that he be held in contempt of court for failing
to pay child support. He brought his monthly obligation up to date before
the court hearing but had not obtained the insurance policy. The circuit
court awarded her attorney fees after deciding the case. The three-judge
panel unanimously reversed the award, expressing some misgivings while
acknowledging that the fee issue is up to the Legislature. It noted that
"The rule limiting fees for fees has the advantage of encouraging parties to
litigate fees in an efficient manner," and that the Florida Supreme Court
held in State Farm Fire & Casualty Co. v. Palma that fee litigation costs
are recoverable only by statute or when the parties agree to it. In Palma,
the court said those costs could be recovered by the wife’s attorneys
because they were covered by her policy with State Farm.
In Gosselin v. Gosselin,
869 So.2d 667, 29 Fla. L. Weekly D808 (Fla. App. 4 Dist. Mar 31, 2004) the
4th DCA held that the rule requiring motions for attorney fees or a judgment
taxing costs to be filed within 30 days of a final order does not apply to
orders in marital dissolution actions that would amend the final judgment.
The Court said: "In such cases, so long as a party seeks fees within a
reasonable time after the post-decretal work was performed, such a motion
will be timely filed." It reversed the denial of the former wife's request
for attorney fees as untimely and remanded for further proceedings.
In Furnes v. Reeves,
362 F.3d 702 (11th Cir. 2004), disagreeing with decisions from three other
circuits, [Croll v. Croll, 229 F.3d 133 (2d Cir. 2000); Fawcett v. McRoberts,
326 F.3d 491 (4th Cir. 2004) cert. denied, 124 S. Ct. 805 (2003); Gonzales
v. Gutierrez, 311 F.3d 942, 954 (9th Cir. 2002)] the Eleventh Circuit Court
of Appeals found that a ne exeat provision in Norwegian law that gave the
father veto power over his ex-wife's right to move abroad with their child
constituted a "right of custody."
In Coltea v. Coltea,
856 So. 2d 1047 (Fla. Dist. Ct. App. 2003) the 4th DCA held that lump-sum
alimony could be awarded in an action for support unconnected with a divorce
proceeding. It overruled its decision in Hasslacher v. Hasslacher, 650 So.2d
166 (Fla. 4th DCA 1995) which held that the supreme court's decision in
Bredin v. Bredin, 89 So.2d 353, 356 (Fla.1956), controlled the issue. Bredin
had held that lump sum alimony was not available in proceedings for support
unconnected with divorce. Hasslacher held that in proceedings for alimony
unconnected with dissolution of marriage Bredin bars the court from awarding
any lump sum alimony. The court determined that Bredin does not state
current law. In 1956 when Bredin was decided, alimony was payable only by
husbands "primarily to provide food, clothing, habitation and other
necessaries for the support of the wife." Until 1947, all alimony in divorce
had to be paid in periodic installments, as there was no authority for lump
sum awards. Today the statute does not speak of husbands or wives, only of
spouses. Alimony is no longer limited to wives, and adultery is no longer a
bar to entitlement. Hasslacher failed to consider the historical context of
precedent on which it relied. Bredin was based on the former statutory law
of divorce, and the Legislature had since abandoned the entire construct of
divorce. In its place the Legislature has adopted no-fault dissolution of
marriage in this state. Unlike divorce, no-fault dissolution does not focus
on the conduct of the parties that led their marriage to fail. Apart from
these changes in the legal landscape, Hasslacher also failed to consider
whether the term lump sum alimony meant the same thing today as it meant to
the Bredin court. Bredin's holding in 1956 was then the prevalent
understanding of the use of lump sum alimony. The usage of lump sum alimony
employed in the present case--as security for the payment of support--was
not to adjudicate property rights at all. Lump sum alimony was intended to
secure the payment of support by a spouse/parent with a history of refusing
to pay such support. There is no hint in Bredin in 1956 that the meaning of
lump sum alimony used by the trial judge in this case was ever considered.
The 1955 text of what is now section 61.09 was changed significantly. The
court held that Hasslacher was wrongly decided and does not state a current
understanding of the statute in question. It concluded that the holding in
Bredin was made inapplicable by the abandonment of the system of divorce in
favor of dissolution of marriage and the changes in the statutory text and
therefore receded from Hasslacher.
In Glazner v. Glazner,
347 F.3d 1212 (11th Cir. 2003) (en banc) the Eleventh Circuit Court of
Appeals held that spousal wiretaps are prohibited by federal law.
In
Gitter v Gitter, --- F.3d ---, 2005 WL
17997 (2nd Cir.) the Second Circuit Court of Appeals construed the phrase
"habitually resident" as contained in the Hague Convention on the Civil
Aspects of International Child Abduction. The Court held that in determining
a child's habitual residence, a court should apply the following standard:
"First, the court should inquire into the shared intent of those entitled to
fix the child's residence (usually the parents) at the latest time that
their intent was shared. In making this determination the court should look,
as always in determining intent, at actions as well as declarations.
Normally the shared intent of the parents should control the habitual
residence of the child. Second, the court should inquire whether the
evidence unequivocally points to the conclusion that the child has
acclimatized to the new location and thus has acquired a new habitual
residence, notwithstanding any conflict with the parents' latest shared
intent." The Court also held that in cases arising under the Convention, a
district court's factual determinations are reviewed for clear error.
However, the district court's application of the Convention to the facts it
has found, like the interpretation of the Convention, is subject to de novo
review.
(Read Comprehensive Discussion of Case.)
In Whiting v Krassner,
___F3d___, No. 03-1276 ( 3rd Cir, 2004)
Whiting brought an action under the Hague Convention for the return of her
daughter, Christina, to Canada. Christina had been taken by Krassner, her
father, to the United States without her consent. The District Court
determined that Christina’s place of habitual residence at the time of her
removal from Whitings custody was Canada, and ordered that Christina be
returned to her in Canada. The Third Circuit Court of Appeals, focusing on
the settled purpose and shared intent of the parents of a very young child,
a test it established in Feder v. Evans-Feder, 63 F.3d 217(3d Cir. 1995) and
Delvoye v. Lee, 329 F.3d 330 (3d Cir. 2003), affirmed, holding that the
District Court properly found that the child’s habitual residence was
Canada. It also held that the appeal was not rendered moot by virtue of the
child’s return to Canada during the pendency of the appeal, rejecting the
rationale of the Eleventh Circuit in Bekier v. Bekier, 248 F.3d 1051 (11th
Cir. 2001), and adopting the rationale of the Fourth Circuit in Fawcett v.
McRoberts, 326 F.3d 491(4th Cir. 2003).
(Read Comprehensive Discussion of Case.)
In
Sealed Appellant v Sealed Appellee
--- F.3d —, 2004 WL 2915345 (5th Cir.(Tex.)) the father of two
Australian-born children petitioned for their return to Australia under the
Hague Convention on the Civil Aspects of International Child Abduction. The
District Court denied the petition holding that he was not exercising
custody rights at the time of their removal. The Court of Appeals adopted
the reasoning from Friedrich II and held that in the absence of a ruling
from a court in the child's country of habitual residence, when a parent has
custody rights under the laws of that country, even occasional contact with
the child constitutes "exercise" of those rights. To show failure to
exercise custody rights, the removing parent must show the other parent has
abandoned the child. It held that under the law of Australia, the children's
country of habitual residence, the father was "exercising" his rights of
custody when the mother removed the children. It also held that no custody
suit need be pending for the mother's removal to be wrongful under the
Convention.
(Read Comprehensive Discussion of Case.)
In
Tenorio Ruiz v Tenorio, 388
F.3d 784, 17 Fla. L. Weekly Fed. C 1161, 17 Fla. L. Weekly Fed. C 1173 (11th
Cir.) the action, dealing with habitual residency under the Hague Convention
on the Civil Aspects of International Child Abduction, presented two issues
of first impression in the 11th Circuit, the standard of review
and the definition of "habitual residency". The Mexican father of children
born in the United States and living in Mexico filed a petition in the
United States District Court for the Middle District of Florida claiming
"wrongful removal" after the American mother moved with the children from
Mexico to Florida. The District Court denied the petition on the grounds
that the "habitual residence" of the children was in the United States. The
Court of Appeals affirmed. It held that a mixed standard of review is
appropriate for determining the issue of child's habitual residency in
appeals involving wrongful removal petitions brought under the International
Child Abduction Remedies Act (ICARA). It also held that the opinion in Mozes
v. Mozes, 239 F.3d 1067, 1074 (9th Cir.2001), by Judge Kozinski sets out the
most appropriate approach to determining "habitual residence", and that the
father failed to prove that the children's prior United States habitual
residence had been abandoned and a new habitual residence in Mexico
established when they moved to Mexico.
(Read Comprehensive Discussion of Case)
This decision was withdrawn on December 7, 2004 and a
new decision rendered. See 392 F3d 1247. A few of the factual
findings were changed but otherwise identical to the original decision.
Cases Decided under the
Hague Convention on the Civil
Aspects of International Child Abduction
Appeals Court Hold Transexual Marriage Void in Florida.
In Kantaras v Kantaras, --- So.2d ---,
2004 WL 1635003 (Fla.App. 2 Dist.) Margo Kantaras was born a female. In 1986
Margo changed her name to Michael and in 1987 underwent sex reassignment. In
1988 Michael met Linda, who learned of the surgeries. Linda, who was
pregnant by a former boyfriend, gave birth to a son in June 1989. Linda and
Michael applied for a marriage license with Michael representing that he was
male and they married in July 1989 in Florida. In September 1989, Michael
applied to adopt Linda's son, with Michael representing to the court that he
was Linda's husband. Linda gave birth to a daughter in 1992 after Linda
underwent artificial insemination with the sperm of Michael's brother. In
1998 Michael filed a petition for dissolution of marriage seeking to
dissolve his marriage to Linda and to obtain custody of both children. Linda
counter-petitioned for dissolution and/or annulment claiming that the
marriage was void ab initio because it violated Florida law. The trial court
entered an order finding that Michael was legally a male at the time of the
marriage, and concluded that the marriage was valid. It also concluded that
Michael was entitled to primary residential custody of the two children. The
District Court of Appeal held that Michael Kantaras was not legally a male
when he married Linda. It pointed out that the Florida Legislature has
expressly banned same-sex marriage. As amended in 1977 by chapter 77-139,
Laws of Florida, the statute governing the issuance of a marriage license,
at the time one was issued in this case, provided that no license shall be
issued unless one party is a male and the other a female. §741.04(1), Fla.
Stat. (1987). In 1997, the legislature enacted the Florida Defense of
Marriage Act, prohibiting marriage between persons of the same sex §
741.212, Fla. Stat. (Supp.1998). It noted that Courts in Ohio, Kansas,
Texas, and New York have addressed issues involving the marriage of a
postoperative transsexual person, and in all cases the courts have
invalidated or refused to allow the marriage on the grounds that it violated
state statutes or public policy. The Court held that the controlling issue
was whether, as a matter of law, the Florida statutes governing marriage
authorize a postoperative transsexual to marry in the reassigned sex. It
concluded they do not. It agreed with the Kansas, Ohio, and Texas courts in
their understanding of the common meaning of male and female, as those terms
are used statutorily, to refer to immutable traits determined at birth.
Therefore, it also concluded that the trial court erred by declaring that
Michael was a male for the purpose of the marriage statutes. Whether
advances in medical science support a change in the meaning commonly
attributed to the terms male and female as they are used in the Florida
marriage statutes is a question that raises issues of public policy that
should be addressed by the legislature. Thus, the question of whether a
postoperative transsexual is authorized to marry a member of their birth sex
is a matter for the Florida legislature and not the Florida courts to
decide. The Court stated that until the Florida legislature recognizes
sex-reassignment procedures and amends the marriage statutes to clarify the
marital rights of a postoperative transsexual person, it must adhere to the
common meaning of the statutory terms and invalidate any marriage that is
not between persons of the opposite sex determined by their biological sex
at birth. Therefore, it held that the marriage was void ab initio.
Florida Supreme Court Sets New Limits on Grandparent Visitation.
In Sullivan v Sapp, 2004 WL 62845 (Fla.) the maternal grandmother filed a
motion to intervene in a paternity action and sought an award of visitation,
after the child's mother was killed in a car accident, while the mother's
motion for rehearing was pending. The Circuit Court dismissed the motion and
the District Court of Appeal affirmed. The Supreme Court, held that the
grandparent visitation statute, Section 61.13(2)(b)2.c. of the Florida
Statutes, allowing the court to grant a grandparent visitation rights if it
is in child's best interest, without requiring a showing of harm to child as
result of lack of grandparent visitation, impermissibly infringes on a
parent's state constitutional privacy right to raise his or her child and is
unconstitutional.
(Read Comprehensive Discussion of Case)
The Florida Supreme Court adopted family
court rules that became effective January 1, 2004. The rules allow parties
to a divorce case to hire a lawyer for a limited purpose without the lawyer
having to represent that party or appear in court for that party on any
other issue. The purpose of the new rule is to provide the public with
greater access to affordable legal representation. Under the new Family Law
Rules of Procedure 12.040, after the limited service is performed, the
lawyer files a "termination of limited appearance" and is automatically
relieved from any other representation in the case. The rule requires
attorneys who provide a limited service to include their contact information
as well as their client's contact information in all filings they have
prepared. The opposing party is required to serve both the lawyer and the
client with any pleadings or documents related to the limited service. The
Supreme Court's order adopting the new rules also amended Florida Rule of
Judicial Administration 2.060 and Rules of Appellate Procedure 9.360 to
reflect the fact that lawyers providing limited services may withdraw from
divorce cases by filing a termination of limited appearance. Florida Bar
Rules 4-1.2 through Rule 4-1.3 were modified to reflect the change in the
family law procedure. Those rules require that the lawyer providing limited
services must specify what services he has agreed to perform in a signed
agreement with the client. The amended rules specify that in a case with
limited representation, an opposing lawyer can speak directly with a pro se
litigant unless he or she receives written notice that the litigant is being
represented by counsel for a limited purpose. In such case, the opposing
party must speak only with the lawyer providing the limited service
regarding any related topic.
Divorce Your Parents -- The Daily Legal
Newswire, Thursday, April 29, 2004, published on the web by the editors of
American Lawyer Media's at
http://www.law.com/newswire/,
reported that a 14-year-old boy whose mother was killed by his father is
going to trial to sever paternal ties, after a family court judge in Ohio
reversed his own earlier decision and agreed to let the case proceed. The
father is serving a life sentence in prison, but wants access to information
about his son's life. It pointed out that if successful, Patrick Holland
would become the first child in the United States to divorce a parent.
Patrick, who was 8 at the time of his mother's death, discovered her body
after the murder. (Wasn't there a movie about this already?)
Four new laws affecting Florida
Divorce and Family Law were signed by the Governor. One makes extensive
changes in our Adoption Laws (Chapter 2003-58, Laws of Florida) while
another makes confidential and exempt from most public disclosure, the
information in the Putative Father Registry/Public Records (Chapter 2003-56,
Laws of Florida). Another new law prescribes the process for pursuing an
administrative, civil or criminal claim against a court-appointed
psychologist who makes a child custody evaluation in a judicial proceeding
(Chapter 2003-112, Laws of Florida). Finally the legislature passed "The
Victim's Freedom Act" to provide a new type of injunctive relief against
sexual violence (Chapter 2003-117, Laws of Florida.)
For summaries of the legislation click here.
The Florida Supreme Court
approved amendments to the Family Law Rules of Procedure, added dating
violence to the rules (See Rule 12.610) and allowing the "conditional
sealing" of financial information in a family law case (See Rule 12.400). It
also clarified the disclosure rules in dissolution cases, specifying that
only the financial affidavit and child support guidelines worksheet must be
filed with the court, unless there is a court order. (See Rule 12.286) . The
disclosure amendment protects from public disclosure information such as
Social Security numbers and income tax returns. See Amendments to Florida
Family Law Rules of Procedure, case no. SC03_60. For the text of the
opinion, and the amendment rules
click here or go directly to the Florida Court's
Web site
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