The Florida Bar Family Law Section Commentator

Volume XXVIII, No. 1 Amy Hamlin, Esq. and Sarah Sullivan, Co-Editors Fall 2014

www.familylawfla.org 2 COMMENTATOR fall 2014

INSIDE THIS ISSUE:

Chair’s Message...... 3 Section Comments from the Chairs of Publication Committee...... 4 calendar Welcome to the Chair...... 5 Guest Editor’s Corner...... 7 Look for information on the “Family Support” and “Losses That Are Assets” – Two Topical Tax Family Law Section’s website: Tidbits to Think About...... 9 www.familylawfla.org. The Kids Are Alright...... 15 2014-2015 Beyond Thunderdome...... 19 Leadership Retreat & Fall Meeting – Palm Harbor, FL (Photos)...... 20 December 4-7, 2014 Family Law Section Vaccinating Problems...... 23 In State Retreat Amelia Island Different Roles Psychologists and Mental Health Professionals Play in Your Case...... 26 SAVE THE DATE! Typical and Atypical Sexual Behavior of Young Children...... 30 April 8-12, 2015 Out of State Retreat In Recognition of Marital and Family Equality: The Family Law San Juan, Puerto Rico Section’s Brief Amicus Curiae in Shaw...... 34

January 30-31, 2015 Brochure: In State Retreat...... 36 2015 Marital and Family Law Brochure: Collaborative Practice: Staying Out of the Briar Patch...... 38 Certification Review Course Hilton Bonnet Creek

Details and registration at www.familylawfla.org The Commentator is prepared and published by the Family Law Section of The Florida Bar. Norberto Katz, Orlando – Chair Maria C. Gonzalez, Weston – Chair-Elect Laura Davis Smith, Miami – Treasurer Nicole L. Goetz, Naples – Secretary Elisha D. Roy, West Palm Beach – Immediate Past Chair Amy Hamlin, Winter Park – Co-Editor Sarah Sullivan, Jacksonville – Co- Editor Ronald H. Kauffman, Miami – Chair of Commentator Diana Polston, Tallahassee — Administrator Donna Richardson, Tallahassee — Design & Layout

COVER PHOTO Statements of opinion or comments appearing herein are those of the authors and contributors and not of The Florida Bar or the Family Law Section. Cover photo taken by Julia Wyda on the Section’s boat Articles and cover photos to be considered for publication may be submitted to excursion to Tarpon Springs during Amy Hamlin, Co-Editor, at [email protected], or the 2014 Leadership Retreat Sarah Sullivan, Co-Editor, at [email protected]. in Palm Harbor MS Word format is preferred for documents, and jpg images for photos. fall 2014 COMMENTATOR 3 Chair’s Message

Greetings and a warm of family law. In addition, welcome from the Execu- please consider attending tive Council of the Family our fabulous Retreats; I Law Section of The Florida included the details of both Bar. Although somewhat the Fall and Spring Retreats intimidating to be following below. in the footsteps of so many By the date of publication talented and dedicated of this issue of The Commen- past Chairs, I look forward tator, we will have had our to serving as the Chair of Leadership Retreat at the our Section for the coming Innisbrook Resort, a mix of year. It is a true honor and training to be a future lead- privilege to be leading one er of our Section as well as of the premier Sections of many fun filled activities, in- the Bar. Joining me as part cluding a “Cardboard Boat” of the team are the other race where teams built a members of the Executive cardboard boat and raced Committee, accomplished across a pool, a “put put” golf leaders of our profession in competition, and an incred- their own right; our Chair- ible End-of-Retreat dinner. Elect Maria Gonzalez, Trea- Many thanks go out to Doug surer Laura Davis-Smith, Norberto Katz Greenbaum, our fearless Secretary Nicole Goetz and Section Chair Leadership Retreat Chair, our Past Chair, Elisha Roy and program Chairs, Carin and the other valuable mem- Porras and Diane Kirigin, bers of the Section and our Trustees, who continue to for all their hard work in making this Retreat a suc- offer invaluable guidance and assistance whenever cess. the need arises. Our next Retreat, chaired by Thomas Duggar, will This first message is my opportunity to give you a be from December 4 to December 7 at the Ritz-Carlton preview for the coming year. As I announced at our Sec- in Amelia Island. Not only will this be an opportunity tion luncheon in June, my theme for the year is “Back for fellowship with family, colleagues, and friends, it to Basics.” As we reflect on our past accomplishments, I will feature a CLE titled: “How to Grow Your Practice would like us to be re-energized by coming back to the and Enhance Client Services In a Changing Economy” many things that make the practice of law one of the presented by Glenn Gutek of Atticus, as well as a cook- finest professions in our country. First and foremost is ing class and a dinner at Salt, a AAA Five Diamond promoting the highest ideals of our profession amongst Award winning restaurant. This Retreat is a wonder- ourselves and others: professionalism, ethics, and civil- ful opportunity for you and your family to kick off the ity. In addition, that we continue to be educated and holiday season. Please visit our website to review the well versed on changes in the law, both statutory and brochure for this Retreat with more information and case law, which develop at an incredible rate of speed. instructions on booking the Ritz-Carlton. And, finally, that we obtain all the necessary tools to Our Spring Retreat at the La Concha Hotel in San be effective and zealous advocates for our clients. Juan, Puerto Rico is in the final stages of planning by I invite you to become an active member of the Chairs, Jorge Cestero and Dr. Deborah O. Day. Jorge Family Law Section and all we do. Should you choose and Dr. Day are planning a fabulous Retreat in the to do so, you will find your involvement both enjoyable “Isla del Eacanto” (the Island of Enchantment) with and fulfilling. There are many ways to get involved. an informative and interesting CLE, several enjoy- You may serve on one of our many committees that able activities, and fabulous meals featuring local are listed on our website, http://www.familylawfla. fare in beautiful surroundings. Please check our web org/committees. Many of these committees have and site for more updated in the coming weeks to view the continue to have a substantial impact on the practice brochure. 4 COMMENTATOR fall 2014

Chair’s Message from preceding page Board certified lawyers Our greatest challenge this year, as in recent past, is are legal experts the issue of possible changes to the alimony statute. It is the Section’s plan to do our best to work in a coop- dedicated to professional erative fashion with the Legislature to ensure that our State’s alimony laws are fair and equitable to all its excellence. citizens. Towards this goal, our Alimony Subcommittee of our Legisla- tion Commit- tee, chaired by Our greatest challenge this Thomas Sass- BECOME BOARD er, is in the year, as in recent past, is the final stages of compiling issue of possible changes to CERTIFIED information and formulat- the alimony statute. ing language for a proposed bill by the Section. A meeting of the Legislation Com- mittee and the Executive Council is scheduled for October 24 in West Palm Beach to discuss and vote on the language of a proposed Bill. I will keep the Section updated as to our efforts as things develop. I look forward to an interesting, productive, and most important, fun filled year for the Section. Please consider joining us by volunteering to serve on a com- mittee, attending our meetings, and coming to our Retreats. I am sure you will find the experience both professionally and personally as rewarding as I have. Thank you. FloridaBar.org/certification — Norberto Katz

Comments from the Co-Chairs of Publication Committee

Here we are; a new “year,” a new Chair, and a new theme. This time, we’re “back to basics.” Sarah and I thank everyone who had a hand in creating this edition; everyone has embraced Norberto Katz’s theme and we look forward to buckling down to help all of you help Florida’s families. We have a great line-up of Guest Edi- tors this year and they have all hit the ground running. It’s going to be a great year with issues full of great articles and information to assist you in your practice. Please do not hesitate to email me at [email protected] or Sarah Sullivan, at [email protected], with any questions, comments, or suggestions! fall 2014 COMMENTATOR 5 Welcome to the Chair Amy Hamlin, Esquire, Winter Park, FL

Every June, dur- A: My Wife Jodi, ing the annual meet- whom I met while in ing of the Florida law school, and I have Bar, the Family Law been married for 29 Section swears in a years. She has been a new Chair of the Sec- Latin teacher in the tion. This year, we Orange County Pub- welcome Norberto lic School system for Katz from Orlando 25 years. My oldest as our new Chair for son, Joshua, graduat- the year. For those ed with an Industrial of us who have been Engineering degree involved in the Sec- from the University tion for any length of Central Florida of time, we tend to and now works in the know, or are at least logistics area with familiar with, the UPS at their hub in people who make up Louisville, Kentucky. the Executive Com- He won’t tell me any mittee. But, for the more about his work, vast majority of the 4,000 members of below for the details). For a differ- something about trade secrets! My the Section, the Chair is just a name ent perspective about Norberto, I younger son, Jonathan is a Junior and a face. For those of you who don’t spoke with Dr. Deborah Day. She, like at the University of Central Florida, know Norberto, this welcome is your the others, told me about Norberto’s majoring in Civil Engineering and introduction to the face of the Section. various interests, community service, minoring in Music. He has been a And, for those of you, like myself, who and family dedication. I thank all of percussionist since picking up a set have known Norberto for years, this them for taking the time to speak of drumsticks at age 5. He was the article may reveal things you didn’t with me; it was clear they all think principal percussionist for the Flori- know. highly of Norberto and believe he will da Symphony Youth Orchestra for 4 In preparation to write this piece, be a bright light to lead the Section years and is now a percussionist with I spoke with a few people who know through whatever obstacles and chal- the Brass Band of Central Florida. Norberto pretty well. Bruce Black- lenges we may face this year. This band tours extensively and has well, the Executive Director of the I asked Norberto a number of ques- competed both in the United States Florida Bar Foundation, introduced tions, picking up on the themes laid and Europe. Norberto as the new Chair, during the out for me by Bruce, Angel, and Dr. Q: I’ve been told that you have an Family Law Section’s June luncheon. Day. He was thoughtful, insightful, extensive Coca Cola collection; how For those of you who know Bruce, and revealing in his answers. did that get started? most of the comments and stories he Q: You were born in Argentina; A: When the boys were very young, told me were too colorful to print in how did you end up in Orlando? we were in Spain on vacation and this publication. What I can print is A: My Dad was a musician in Ar- the kids spotted a Coca Cola bottle his emphasis that most of us have no gentina and as a young man he used with an Olympics logo. It just spread idea how much Norberto gives back to work as a musician on cruises. He from there. Whenever we traveled, we to the community; over the years he visited the United States on several purchased bottles from the areas we has given a significant amount of occasions while working on cruises visited as mementos of our trips and his time to numerous organizations. and decided that this country was soon thereafter, family and friends He also told me how dedicated Nor- where he wanted to raise a family brought us bottles from wherever berto is to his family and proud of for the opportunities provided. When their travels took them. In time, we his two sons. I also spoke with Angel I was 7 we legally emigrated to the have collected over 2,000 bottles that Bello-Billini, Litigation Director for United States and first came to New are now displayed in a room with spe- the Legal Aid Society of the Orange York. Several years later my family cial shelving designed by my wife. We County Bar Association. Angel, like moved to Orlando when my Father call it the “Coke Room.” I always have Bruce, had plenty of funny stories started a business here. to explain “not that type of coke!” about Norberto, which include how Q: Tell us about your family; you Q: I spoke with Angel Bello-Billini; he became the first president of the have two sons, one of whom is a tal- he told me a funny story about how local Hispanic Bar Association (see ented musician. continued next page 6 COMMENTATOR fall 2014

Welcome to the Chair – from preceding page you became the first president of the tary school teachers. When I was equitable alimony bill for all to be local Hispanic Bar Association. Tell an immigrant child, many of them proposed to the Legislature. us about your involvement in estab- encouraged me to work hard and Q: How have you seen the practice lishing that organization. become a success. Professionally, my of family law change over the years? A: In 1990 a small group of His- first employer, Meredith Cohen, who A: Unfortunately, we have lost panic lawyers, including Angel and was one of the premier family law some of the professionalism that was me and a Hispanic Judge, Jose Rodri- attorneys in Orlando was a great there when I began practicing law. guez, got together and decided to form mentor when I began my career. As There is too much “guerilla warfare” the Hispanic Bar Association. While a hearing officer, many of the Judges and not enough “what’s best for our discussing the by-laws and initial whom I have had the pleasure of clients.” slate of officers for the organization at working with, have mentored me. Q: Your theme for the year is a local restaurant, I went to the rest Q: Your Chair’s Message in this “Back to Basics;” what advice do you room. When I got back to the table, I edition of the Commentator encour- have for new lawyers just starting was advised that I had been elected ages people to get involved in the their family law practice? the first President of the organiza- Family Law Section; how did you get A: First, get a great assistant. tion. involved? Attend CLEs and seminars to en- Q: You’re involved in many organi- A: I attended numerous meetings hance your knowledge. Also, become zations; tell us about those interests. and began volunteering to serve on involved in your local bar association A: I have a credo I live by: “Leave several committees. family law committee and the Family the world a better place than it was Q: The Family Law Section cur- Law Section to get to know your fel- when you got there.” I have always rently has about 4,000 members: low lawyers and Judges. had a passion for the welfare of chil- That shows how prevalent family Q: Last year, the theme was taking dren, and I firmly believe ensuring law is in this State. What do you see care of yourself. With everything on their safety and success is the key as some challenges that family law your plate, I imagine you have a fair to a better future. As such, I have practitioners have today? amount of stress. How do you take always focused my energies in that A: First and foremost, what has care of yourself? regard as a Guardian Ad Litem for become the competitive and difficult A: Adding to the Coca Cola collec- the Legal Aid Society of the Orange nature of the practice of law. With tion! And working out with a great County Bar Association and later as so many law schools and resulting personal trainer. President of the organization, as a graduates, many of whom gravitate I met Norberto shortly after I be- Board member and President of the to family law by necessity, without came involved with the Family Law Florida Symphony Youth Orchestra, proper mentoring and experience, we Section in 2004. We were in Tampa, and a member of the Community have many attorneys not acquainted attending a Section event. I was sit- Leadership Council for the Howard with the applicable statues, rules ting by myself at breakfast. He sat Phillips for Children and Families. and case law, which makes practicing down at my table, introduced himself, Q: What made you decide to go to with them very hard. In addition, the and we started talking. I have consid- law school? rapid changes in our society relating ered him a friend since then. Through A: My mother, it was either be a to families and children lead to an the years, I have been involved in sev- doctor or a lawyer. I am afraid of nee- ever changing legal landscape that eral Section committees chaired by dles and blood, so there you have it. family law practitioners must learn Norberto, one of which was Children’s Q: You have been a Hearing Of- to cope with. ficer for quite some time now; what Q: What prompted you to want to Issues. During that particular year, was the path you took to arrive at this become Chair of the Section? there were a few meetings where stage in your career after leaving law A: A desire to continue the good certain people tried to push their own school? work by leading what I believe is the agenda causing tension for the group. A: I practiced family law for many finest Section of The Florida Bar. More than once, discussions started years and at a certain point I decided Q: What do you hope to accomplish to take a turn for the worse, but each I wanted to try the “other side of the during your year as Chair? time, Norberto was calm, reasonable, street.” I was blessed to have been A: First and foremost, to engage and used humor to restore order and appointed by several of the judges I all our Executive Council and com- dignity. practiced in front of for many years. mittees in continuing the good work We are in good hands with Norberto Q: I have been really lucky in my that has been done in the past. In personal and professional life to have addition, I want to bring a sense of as our Chair this year. I know he will been influenced and mentored by collegiality and a “team approach” do everything he can to ensure we some great people; who are those to what we do. In addition, I would become better attorneys, help each people for you? like to build future leadership for other, and look out for the best inter- A: Actually, several of my elemen- the Section. And finally, for a fair and ests of Florida’s families. Welcome.  fall 2014 COMMENTATOR 7

The new Family Law to drive you crazy. Put your Section Chair, Norberto feet up on the couch, and S. Katz, has made ‘getting let expert psychologist Dr. back to basics’ this year’s Deborah Day explain what theme. Getting back to ba- all the differences mean in sics means bringing value GUEST Different Roles Psycholo- to Family Law Section gists and Mental Health members through informa- Editor’s Corner Professionals Can Assume tive articles in the Com- in Your Case. mentator. I’d like to person- Ronald H. Kauffman, Miami Mad Max quickly learned ally thank the contributing Thunderdome’s simple writers who made this rule: “Two men enter, one happen. I also want to ac- man leaves.” But Jerry knowledge the never ending work of our editors and Rumph explains in Beyond Thunderdome how the advisors, and especially our Publications Committee pro bono program, Thunderdome Tallahassee, has Co-Chairs, Amy Hamlin and Sarah Sullivan. given new meaning to Bartertown’s gladiatorial are- What is between the covers of the Fall edition? na. Thunderdome has changed from hand-to-hand A trio of expert psychologists, Theodore Wasser- combat into a hands-on legal training program, pro- man PhD., Lori Wasserman PhD., and Sheila Furr viding education and recognition to a new genera- PhD., help answer a very tough question: how to tion of volunteer lawyers serving their communities. distinguish between true and false allegations of Many of us know that same-sex marriages are not child sexual abuse in Typical and Atypical Sexual recognized in Florida, even if validly entered into in Behavior of Young Children. The article will not only another state. Same-sex divorces are not recognized help you interpret abuse signs, a quiz at the end will either. In the article In Recognition of Marital and test your skills at spotting abuse. Family Equality: The Family Law Section’s Brief Fall in Florida is not just colorful leaves, chilly air, Amicus Curiae in Shaw, Christopher W. Rumbold and hot cider. Fall also means the school bells are & Lissette Gonzalez, bring us up to date on the ringing, and children’s blue immunization forms are Family Law Section’s support of legislation in favor due. But what happens when one parent refuses to of same-sex marriage, and the Section’s filing of an vaccinate their child and the other insists on it? Vac- amicus brief in the pending appeal Shaw v. Shaw. cinating Problems, looks at how two Florida courts Did you know roughly one in every 100 American decided vaccination cases, but arrived at different adults is in prison? Doreen Inkeles brings more conclusions. to those cold numbers than mere statistics in The If nothing is certain but death and taxes, Chris Kids Are Alright. If you have to argue a timesharing Tiso offers up a tribute to the great Mel Frumkes motion involving an incarcerated parent, Doreen is in Family Support and Losses That Are Assets. The your guide through the razor wire gates of a Florida article would make Mel proud. Chris explains how prison. By the time you argue that motion, you’ll a hybrid of child and spousal support obligations have learned the hard truth of prison visitation time allow our clients to take advantage of favorable tax from the inside. provisions, and also reminds us that market losses This edition of the Commentator is packed with can be marital assets to be equitably distributed. practical articles that anyone – from the board Who is a better expert for your case, a psychologist certified expert to the non-lawyer with a family or a psychotherapist? Selecting the right profes- problem – can pick up and benefit from immediately. sional for the right role can be confusing because We are getting back to basics. We hope this edition there are so many titles to choose from. It’s enough of the Commentator continues to fulfill our mission. 8 COMMENTATOR fall 2014

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“Family Support” and “Losses That Are Assets” – Two Topical Tax Tidbits To Think About By Christopher A. Tiso, Esquire, Boca Raton

This article is and deductable by the payor. Borrow- One presumption exists when the written in memory ing from California statutes, the First payments reduce within six months and honor of my DCA observed: of a child turning 18, 21 or the local mentor of sixteen age of majority. Accordingly, when “[F]amily support“[is] “an years, Melvyn B. agreement between the parents, or crafting a family support obligation Frumkes, who an order or judgment, that combines and provision, simply make sure passed away on child support and spousal support the payments reduce outside of the April 14, 2014. without designating the amount applicable six month window of an “Mel,” as he was to be paid for child support and event related to a child.6 The second C. Tiso commonly and af- the amount to be paid for spousal rebuttable presumption is where the fectionately known, was a pioneer support”. . . . It is a hybrid support payments are to be reduced on two and icon in all facets of family law, but obligation which permits the parties or more occasions which occur not none more than the arena of divorce to take advantage of favorable tax more than one year before or after provisions.1 taxation. He wrote, lectured, and a different child of the payor attains taught divorce taxation throughout Caution is required, however, be- a certain age between the ages of 18 the country. There will never be an- cause clearly some portion of fam- and 21, inclusive (with the “certain other “Mel,” as anyone who has ever ily support is child support. Child age” being the same for each child), known him would attest. As a tribute support is neither deductible by the but need not be a whole number of to Mel, here are two topical tax tid- payor nor taxable to the payee.2 Nev- years. It is confusing and the example bits for family law practitioners and ertheless, the Internal Revenue Code provided by 26 C.F.R. 1.71-IT is itself judges to think about. (I.R.C.) will “turn a blind eye” to the not a model of clarity, to wit: child support component so long as A and B are divorced on July 1, Family Support the contingencies of Section 71(c)(2) 1985, when their children, C “Family support,” the new genre of the I.R.C. are “not in play.” If any (born July 15, 1970) and D (born for unallocated or undifferentiated amount of the family support is to be September 23, 1972), are 14 and child support and spousal support, reduced on the happening of a contin- 12, respectively. Under the divorce can be a useful tax savings vehicle gency specified in the instrument that decree, A is to make alimony payments to B of $2,000 per month. provided the provision for said fam- relates to a child, such as attaining a Such payments are to be reduced specified age or income level, mar- ily support is properly and carefully to $1,500 per month on January crafted. Simply stated, family sup- rying, dying, leaving school, leaving 1, 1991 and to $1000 per month port is an unallocated or combined the household, becoming employed, on January 1, 1995. On January 1, award of child support and spousal or a similar contingency or at a time 1991, the date of the first reduction support (alimony/maintenance). The which can be “clearly associated with” in payments, C will be 20 years tax advantage is realized by virtue of such a contingency, then the amount and 5 months and 17 days old. On the payor spouse, who is usually in a equal to the sum of such reduction January 1, 1995, the date of the higher (sometimes vastly higher) tax shall be treated as child support.3 second reduction in payments, D bracket than that of the payee, being Stated otherwise, the amount of the will be 22 years 3 months and 9 able to deduct the entirety of the fam- reduction shall not be included in the days old. Each of the reductions in ily support payment. Conversely, the payee’s income nor deductible by the payments is to occur not more than one year before or after a different payee spouse is required to include payor notwithstanding the “family child of A attains the age of 21 years support” designation.4 Unfortunately, the entire family support payment 4 months. (Actually, the reductions in his or her income, normally at a the I.R.C. does not define the phrase are to occur not more than one much lower income tax rate. In other “clearly associated with.” Fortunately, year before or after C and D attain words, the family support payment is the Temporary Regulations provide any of the ages 21 years 3 months effectively treated as alimony which two rebuttable presumptions and and 9 days through 21 years 5 is generally taxable to the recipient some useful guidance.5 continued next page 10 COMMENTATOR fall 2014

quired by the I.R.C. are met, and cause I.R.C. Section 71(c)(1) expressly “Family Support and Losses” further presuming the law of the requires that the amount of child from preceding page applicable state permits family sup- support must be specifically fixed by port, the I.R.S. should allow the full the “terms of the divorce or separa- months and 17 days.) Accordingly, deduction by the payor and require tion agreement,” and not outside of the reductions will be presumed the full amount be included in the the instrument (such as the amount to clearly be associated with the payee’s income. In Florida, there is no the state’s child support guidelines happening of a contingency relating statutory provision for “family sup- would otherwise require). Thus, when to C and D. Unless this presumption 8 tax time comes, the payee spouse is rebutted, payments under the port” per se. However, that does not divorce decree equal to the sum of mean it is not or should not be recog- must report the full family support reduction ($1,000 per month) will nized. Indeed, settlement agreements as income on his or her income tax 13 be treated as fixed for the support of including family support have been return. the children of A and therefore will approved and incorporated into final For example, in Simpson v. Com- not qualify as alimony or separate judgments.9 Absent an agreement, missioner, 78 T.C.M. 191 (U.T.C., maintenance payments. some courts believe that a separate 1999), the order directed the husband Fortunately, on October 31, 2013, child support guideline amount is to pay $718 as unallocated support the I.R.S. issued Publication 504 mandated by §61.30, Fla. Stat., and for his spouse and children. The wife somewhat clarifying the second re- necessary for the appellate court to excluded the support payments on buttable presumption. The Publica- determine whether the child sup- her 1994 and 1995 income tax returns tion provides the presumption ap- port guidelines were properly ap- claiming that despite the unallocated plies where: plied. They have thus reversed un- award “the entire $718 per month differentiated or unallocated awards should be attributed to child support The payments are to be reduced on – thereby effectively disallowing any because under Pennsylvania Sup- two or more occasions that occur tax savings for the family.10 Other port Guidelines . . . Mr. Simpson was not more than 1 year before or after required to pay $789 each month a different one of [the] children courts, however, have permitted and/ for the support of his two children”. reaches a certain age from 18 to 24. or recognized undifferentiated or un- This certain age must be the same allocated awards.11 Therefore, she postulated “the entire for each child, but need not be a The apparent nonuniformity in the $718 payment should be considered whole number of years. case law notwithstanding, it is clear child support under Section 71(c) for that under §61.30 (11) (a) 11, Fla. federal tax purposes.” The Tax Court It must be kept in mind that the disagreed, concluding: foregoing presumptions are rebutta- Stat., a court may deviate from and ble. The presumptions are overcome if adjust the child support guidelines To determine whether any portion the facts indicate that at the time the amount as “needed to achieve an eq- of the payment is child support, reduction in payments are to be made uitable result . . . . “ Certainly, a need- we look solely to the language the changes are to be determined ed and equitable result is achieved contained in the court order itself. See sec. 71(c)(1). The language of independently of any contingencies by paying less in income taxes to section 71(c)(1) is clear that for relating to a child of the payor, such Uncle Sam and preserving funds for the family. Such deviation was argu- payments to be child support, the as the time selected was merely a “co- written divorce instrument by incidence” that it falls near a child’s ably intimated in Nilsen v. Nilsen, 63 st its terms must fix a sum which birthday.7 So.3d 850 (Fla. 1 DCA 2011), which is payable as child support. It is Here again, Publication 504 pro- reversed and remanded the unal- inappropriate, in light of this clear vides some assistance in two respects. located alimony and child support statutory language, to look beyond It states that if a party can show the award because the trial court “failed the written instrument to examine period of alimony payments is cus- to give sufficient consideration to the what effects, if any, are made by tomary in the local jurisdiction, such guidelines” or calculate the husband’s operation of State law. If Congress as a period equal to one-half the dura- income but appropriately observed had intended for us to look beyond tion of the marriage, the presumption “the trial court may ultimately de- the written instrument, it would have amended section 71(c)(1) to may be overcome. It also articulates termine that the guideline amount so reflect.14 that except for the aforementioned is unjust or inappropriate.”12 contingencies, “[i]n all other situa- If “family support” is ordered and Another interesting illustration is tions, reductions in payments are not the I.R.C. conditions satisfied, the found in Smith v. Commissioner, T.C. treated as clearly associated with the payee spouse cannot fail to include Summary Opinion 2010-15, where happening of a contingency relating the full amount on his or her income the order directed the father to pay to [a] child.” tax return arguing that a portion is $1,287 per month as “support for Provided all of the conditions re- “really” child support. This is so be- [his spouse] and one child.” The order fall 2014 COMMENTATOR 11

further stated that it “was based on significant. If joint, the amount of the provided in Daubert v. Merrill Dow guideline [sic] per consent of parties.” NOL or CLCF can be assigned and Pharmaceuticals, Inc., 509 U.S. 579 The spouse (mother) did not report simply equally divided and distrib- (1993). Further, the present value the support payments on her income uted between the divorcing spouses. method could ultimately result in a tax return claiming the payments The parties can each then use the windfall for one of the parties, at the were child support because of the NOL or CLCF’s in succeeding years expense of the other, such as if one order’s reference to “guideline.” She as they deem fit and as permitted by spouse “prematurely” dies. lost, with the Tax Court observing: the I.R.C. CLCF’s for individuals from Another possible option, if the cir- Assuming, arguendo, that a simple sales or exchanges of capital assets or cumstances permit, is to have the reference to the [child support exchanges of capital assets are per- owning spouse liquidate and distrib- guidelines] grid would produce an mitted only up to the extent of gains ute income tax ladened assets, such accurate figure for what portion from such sales or exchanges plus as funds in an IRA or other retire- of the amounts received was for up to $3,000 of ordinary income (or ment account, to the other spouse. child support, [the mother] has $1,500 if married filing separate).18 In doing so, the owning spouse will not satisfied the requirements of Essentially, a person is limited to take the tax “hit” upon the liquidation section 71(c)(1). The amount of child $3,000 per year but CLCF’s can be and distribution, but by applying the support must be fixed by the terms carried forward for an unlimited pe- of the instrument. (Italic’s added.)15 NOL or CLCF, they will avoid any riod of time until exhausted.19 NOL’s, actual or realized taxation thereon Net Operating Losses on the other hand, generally can be to either spouse. For example, as- and Capital Loss Carry carried back two years or carried sume the husband who is over age Forwards forward for twenty years and NOL’s 59 ½ owns an IRA which is the only 20 Particularly these days, on the are not subject to any per year “cap.” marital asset and is worth $200,000. heels of reeling and poor economic NOL’s can be used to offset ordinary Assume further the husband also times during which many have lost income such as salaries, dividends, owns, in his sole name, NOL’s in the thousands of dollars in the market, and interest without any limitation, amount of $300,000. Ordinarily, to be it marketable securities, business up to the amount of the NOL’s. equalize the IRA distribution, he interests, real estate or otherwise, Complications ensue when the would have to transfer (roll-over) the family law practitioner must not NOL or CLCF’s are marital but titled the wife’s $100,000 one-half share overlook those losses. Such losses are in one spouse’s name alone. In such of the $200,000 into an IRA or other 21 actually “assets” for equitable distri- event, they are not assignable and retirement account in the wife’s name bution purposes. thus not divisible or distributable “in- to avoid taxation on the transfer. 22 Net operating losses (NOL’s) are kind” to the non-owning spouse. Al- The wife would ultimately bear a usually generated from losses ac- ternative methods to equitably share tax when she withdraws those funds tually sustained in the running or (distribute) the NOL’s or CLCF’s from her retirement account. How- operating of a business enterprise must be utilized lest the non-owning ever, if the husband were to liquidate as opposed to merely being a pas- spouse will be shortchanged. and distribute the $100,000 from his sive investor in a business. In simple One option is to attempt to value IRA and pay the sum to the wife or terms, if a husband or wife operates the NOL’s or CLCF’s which one court transfer the money into a savings or a business that loses money, that loss has cautioned “can be complicated” similar non-retirement account in the will usually generate a net operating as they “are indefinite, prospective, name of the wife, she would receive loss or NOL. Capital loss carryfor- and may require analysis of present the $100,000 tax free and although wards (CLCF’s) are often incurred value.”23 To be sure, attempting to the husband would have to report the by losses on stock or similar sales. If present value the NOL’s and CLCF’s $100,000 on his income tax return, he the spouses or a spouse incurs a NOL involves hypothesis and speculation will be no worse off (i.e. he would not or CLCF during the marriage based including, but not necessarily limited have to pay any income taxes) by ap- on the operation or sale of marital to, approximating future income, esti- plying $100,000 of the wife’s “marital” property, the NOL or CLCF is consid- mating tax rates, deductions, credits NOL’s to the taxes he “incurred” by ered marital and subject to equitable and exemptions, determining an ap- the liquidation. distribution.16 Conversely, where the propriate discount rate, and poten- Of course, if the husband in the NOL or CLCF results from a loss tially utilizing life expectancies. This foregoing example were under age related to nonmarital property, the speculation concern could be even 59½, he would incur a ten percent loss would not be subject to equitable greater now given the 2013 amend- penalty for early withdrawal which distribution.17 ment to Section 90.702, Fla. Stat., cannot be offset by the NOL’s. In such Title to the underlying asset to adopting the much stricter expert event, this option may be less appeal- which the NOL or CLCF pertains is testimony test for opinion evidence continued, page 13 12 COMMENTATOR fall 2014

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be permitted to award family support [Court observed “The 1995 stipulation and or- “Family Support and Losses” and “save” the parties income taxes.26 der called for Craig’s payments to Leslie to end from page 11 on May 31, 1997, a date within four months of As for NOL’s and CLCF’s, if either the day the parties youngest child would obtain or both are involved, those are “loss- the age of majority. Thus, the payments were es” that can in actuality be significant presumed to be child support under §71 (c) of ing to the parties but still could be vi- the Code, and the regulations thereunder, and able if the non-owning spouse desires marital assets to be equitably dis- presumed to be non-deductible on Craig’s tax his or her share now and “tax free” tributed in some form or fashion, returns.”]. See also, Johnson v. Commissioner, the specific method of distribution T.C. Memo 2014-67 [Although decree stated and is willing to pay the 10% penalty former husband’s “spousal maintenance” pay- out of his or her share or agreeable of which being dependent upon title ments were deductible by him, he was not to the owning spouse being compen- thereto and other marital assets of entitled to the deduction because the payments the parties.27 terminated on the former wife’s death, her re- sated in some fashion for taking the marriage, or the graduation from high school 10% penalty “hit.” of the youngest child.]; Handy v. Commissioner, A third option would require the Christopher A. Tiso, Esq., is an as- 2011 Tax Court Summary Opinion 61 [Former sociate with Jonathan S. Root, P.A., husband’s alimony deduction denied for his spouse owning the NOL’s and/or “family support” monthly payments of $1,100 CLCF’s to pay to the non-owning in Boca Raton, Florida. Mr. Tiso is because they terminated upon events related spouse one-half of the tax savings admitted to the Florida and New York to children]; Schilling v. Commissioner, T.C. bars. He practices family, marital, Memo 2012-256 [Where former wife received each year that is generated by the what was effectively family support which use of the NOL or CLCF within “x” and collaborative law. reduced from $2,125/mo. to $1,925/mo. when number of days from the filing of the the eldest child left for college in August 2006, Endnotes and was to terminate in March 2019, for her income tax return until the NOL’s or 2006 income tax return she was required to CLCF’s are exhausted.24 Although 1 Wagner v. Wagner, 885 So.2d 488, 492 (Fla. treat $23,100 ($1,925 x 12 months) as taxable this method requires retention of 1st DCA 2005). See also, Kuper v. Kuper, 632 alimony and $1,600 ($200 x 8 months) as non- N.W.2d 123, n.2 (Wis. Ct. App. 2001) [“Family jurisdiction to enforce and could con- taxable child support]. support” is a substitute for child support and 7 See Shepherd v. Commissioner, T.C. Memo ceivably continue for many years, it maintenance orders, and the designation of 2000-174 [“The time is selected independently does fairly compensate the non-own- payments as “family support” is designed to of any contingencies relating to the children if place the tax burden on the recipient, similar ing spouse for the owning spouse’s it is merely a coincidence that the date pay- to alimony or maintenance.]; Miller v. Commis- ments are reduced falls near a child’s birth- use of the other’s one-half share of sioner, T.C. Memo 1999-273; Kean v. Commis- day.”]. sioner, 407 F.3d 186 (3d Cir. 2005). the NOL’s or CLCF’s on an if, as, and 8 See, e.g., Wis. Stat. Sec. 767.531 [“The court 2 Section 71 (c) (1), I.R.C.; Abern v. Abern, 572 may make a financial order designated ‘fam- when received basis. It involves ac- So.2d 927 (Fla. 3d DCA 1990). tual tax savings and not speculation ily support’ as a substitute for child support 3 Section 71(c)(A) and (B), I.R.C.; I.R.S. Pub- orders…and maintenance payment orders….”]; that inures with the present value lication 504 ( October 31, 2013). Cal. Fam. Code Sec. 92 [“ ‘Family support’ method. 4 This was not always the case. Sections 22(k) means an agreement between the parents, or and 23(u) of the I.R.C. of 1939 (as amended an order or judgment, that combines child sup- by the Revenue Act of 1942) and the I.R.C. port and spousal support without designating Conclusion of 1954 generally defined taxable alimony as the amount to be paid for child support and periodic payments received in discharge of a the amount to be paid for spousal support.”]; Family support can be a great way legal obligation which because of the mari- Mont. Code Sec. 40-4-121(1) [“In a proceeding to save income taxes and provide the tal or family relationship is imposed on the for dissolution of marriage… either party may parties and their child(ren) with ad- payor spouse under a written instrument of move for temporary maintenance, temporary separation. Such “rule of inclusion” excluded support of a child of the marriage entitled to ditional funds for their support and any portion of the periodic payment which support, or a temporary family support order” to pay expenses. It should at least be expressly fixed an amount as a sum payable but if a party is receiving public assistance considered in every settlement nego- for the support of minor children. Sections “the temporary family support order must 22(k), I.R.C. of 1939 and 71(b), I.R.C. of 1954. designate separately the amounts of temporary tiation. Although there are always ex- In Commissioner v. Lester, 366 U.S. 299 (1961), child support and temporary maintenance, if ceptions, even the most embattled di- the divorce agreement provided the periodic any.”]; 231 Pa. Code Rule 1910.16-4(f)(1) [“An vorcing spouses should be amenable payments be reduced by one-sixth after each order awarding both spousal and child support minor child married, emancipated or died. The may be unallocated or state the amount of sup- to spend as little as possible on taxes. Commissioner disallowed the full deduction by port allocable to the spouse and the amount Courts are certainly empowered to the payor claiming one-half was child support. allocable to each child. Each order shall clearly consider income tax implications in The U.S. Supreme Court disagreed holding the state whether it is allocated or unallocated agreement must expressly fix a sum certain or even if the amounts calculated for child and their support awards, provided ap- percentage as child support to be excluded from spousal support are delineated on the order.”]. propriate evidence is presented with to payee’s income. If no amount is so specified 9 See, e.g., Caryi v. Caryi, 119 So.3d 508 (Fla. regard to same.25 It would seem that “the entire amount goes in to the income of the 5th DCA 2013); Swain v. Swain, 932 So.2d 1214 so long as child support guidelines wife.” Congress modified that rule to its present (Fla 1st DCA 2006). state by the Deficit Reduction Act of 1984 and 10 See, e.g. Greenhouse v. Greenhouse, 913 are prepared and considered, the con- Tax Reform Act of 1986. So.2d 1201 (Fla. 4th DCA 2005); Fleischfresser ditions of §71(c)(2), I.R.C., are cov- 5 See Section 1.71-1T (c), Q & A – 18, Tem- v. Accursio, 833 So.2d 803 (Fla. 3d DCA 2002); ered, and presuming the court finds porary Income Tax Regs. 49 Fed. Reg. 34451, Blum v. Blum, 769 So.2d 803 (Fla. 4th DCA 34457 (August 31, 1984). it equitable to deviate and makes the 2000); Greenman v Greenman, 384 So.2d 1303 6 Do not do that which was done in Kuper (Fla. 4th DCA 1980). necessary findings, the court should v. Kuper, 632 N.W.2d 123 (Wis. Ct. App. 2001) continued, next page 14 COMMENTATOR fall 2014

15 Smith v. Commissioner, T.C. Summary must be deducted only on the return of the “Family Support and Losses” Opinion 2010-5, at 6. spouse who actually had the loss.”]; Bloom v. from preceding page 16 See e.g., Mills v. Mills, 663 S.W.2d 369 (Mo. Bloom, 2014 IL. App. (2d) 130163, No. 2-13- Ct. App. 1983) [Where CLCF was generated 0163 (Ill. Ct. App. 2014) [Just because capital from sale of marital property, it was marital loss carryforward may be marital does not and equally distributed]; Smith v. Smith, 235 mean it is divisible]. 11 See, e.g., Mckelvey v. McKelvey, 534 So.2d S.W.3d 1 (Ky. Ct. App. 2006) [CLCF of about 23 Haley v. Haley, 936 So. 2d 1136 (Fla. 5th 801 (Fla. 3d DCA 1988) [Undifferentiated tem- $413,000 deemed marital and equally distrib- DCA 2006). porary alimony and child support awarded]; uted since it resulted from a failed joint busi- Wallace v. Wallace, 605 So.2d 504 (Fla. 4th DCA 24 See e.g. Jodsaas v. Jodsaas, No. A09-96 ness venture during the marriage, each party 1992) [Undifferentiated temporary alimony (Minn. Ct. App. 2009) (unpublished opinion). provided at least some measure of support to and child support award affirmed]; Waldman 25 See e.g., Miller v. Miller, 625 So.2d 1320 the business, and they filed jointly]; McMil- v. Waldman, 612 So.2d 703 (Fla. 3d DCA 1993) lan v. McMillan, 977 So.2d 655 (Fla. 5th DCA (Fla. 5th DCA 1993) [Consideration of the [Court notes original judgment awarded “com- 2008) [The Fifth DCA observed “both parties consequences of income tax laws on alimony bined permanent periodic alimony and child agree that the trial court erred by failing to is required and failure to do so is ordinarily support”.]; Vargas v. Vargas, 648 So.2d 285 equitably distribute $141,446 in capital loss reversible error unless “counsel for the parties (Fla. 4th DCA 1995) [“The remaining monies carry forwards listed in the former wife’s fi- neglect to present evidence on the subject.”]; were awarded to the wife as undifferentiated Farley v. Farley, 800 So.2d 710 (Fla.2d DCA family support”.]; Friedman v Friedman, 844 nancial affidavit” and that on remand “the loss carryforwards should be distributed evenly.”] 2001) [“It is error for the trial court to fail to So.2d 789 (Fla. 4th DCA 2003) [ Court notes consider tax implications of an alimony award that unallocated awards of alimony and child Magee v. Garry-Magee, 833 N.E. 2d 1083 (Ind. Ct App. 2005) [Tax loss carryover is marital when such evidence is presented.”]. See also support have been approved in special circum- Green v. Green, 484 So.2d 1269 (Fla. 3d DCA stances]. subject to equitable distribution]; Finkelstein v. Finkelstein, 701 N.Y.S.2d 52 (N.Y. App. Div. 1986) [Trial court directed on remand to extend 12 Nilsen v. Nilsen, 63 So.3d 580, 581 (Fla. 2000) [Similar]. husband’s lump sum monthly alimony pay- 1st DCA 2011). In Schilling v. Commissioner, ments from nine years and one month to more 17 See Haley v. Haley, 936 So.2d 1136 (Fla. T. C. Memo 2012-256, the parties separation than ten years so he could take advantage of 5th DCA 2006) [CLCF’s resulting from wife’s agreement and decree of divorce incorporat- the then I.R.C. and deduct the payments since nonmarital partnership interest to which hus- ing it provided for spousal support of $2,450 doing so would have no significant effect on the band made no contribution was nonmarital per month with incremental reductions as wife’s award]. their three children turned age 18 or left for and no portion of those CLCF’s should have 26 In Rogoff v. Rogoff, 115 So.2d 456 (Fla. 3d college, with the child support provision stat- been granted to husband]. DCA 1959), the Third DCA observed that an ing “Father . . . will pay to . . . [mother] $0.00 18 I.R.C. Section 1211(b). undivided award of child support and alimony per month, per child . . . The deviation from 19 I.R.C. Section 1212(b). guideline [child] support is made as a result “is not void” but that “either party should be at 20 I.R.C. Section 1082(a). of the long term spousal support payments. . . liberty to apply to the trial court at any time which are calculated to provide support for the 21 See 26 C.F.R. Section 1.1212-1 [re: CLCF’s]; for allocation of the separate amounts intended minor children as well as to . . . [mother].” 26 C.F.R. Section 1.172-7 [re: NOL’s]; IRS Pub- for alimony and for child support.” lication 536 (2013); Haley v. Haley, 936 So.2d 13 See Lawton v. Commissioner, T. C. Memo 27 For additional discussion and excellent 1136 (Fla. 5th DCA 2006). 1999 – 243; Simpson v. Commissioner, T. C. analysis concerning CLCF’s, see Ronald H. Memo 1999 – 251. 22 Denton v. Rose, 2004 WL 2315114 (Ky., Ct. Kauffman, A Wife’s Loss is Not a Husband’s App. 2004) [While the tax loss carryovers are Gain: Equitable Distribution of Capital Loss 14 Simpson v. Commissioner, 78 T.C.M. 191, marital, they “cannot be split between former Carryovers, The Family Law Commentator, 193 (U.S.T.C., 1999). spouses once they begin filing separately and Winter 2011, at 14.

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REGISTER ON-LINE AT WWW.FAMILYLAWFLA.ORG. fall 2014 COMMENTATOR 15 The Kids Are Alright By Doreen Inkeles, Esquire, Boca Raton

As of 2010, about honest, factual information and have course, can be a barrier to in-person 2.7 million children their experience validated, and that visitation. The family may reside in under the age of 18 providing them with reliable, depend- South Florida and the inmate, in had a parent in jail able information allows them to make Central or Northern Florida. Other or prison. 1 In 2007, sense of their situation and begin the barriers are psychological. Parents, it was 1.7 million process of grieving the loss of their caregivers, and social workers may children. According parent and coping with their new life have resistant attitudes toward child- to the 2007 survey, circumstances.13 “Children of prison- inmate visitation, believing that the approximately one ers are more likely to have negative children may react negatively or very D. Inkeles half of those chil- reactions to the experience when they simply, that the imprisoned parent dren were under age 10.2 More than cannot talk about it.”14 simply doesn’t deserve such privileg- a third of minor children will reach The long-term effects of a parent’s es.19 The literature, however, shows age 18 while their parent is incarcer- incarceration are numerous. Litera- that visiting can calm children’s fears ated.3 Seventy-five percent of women ture suggests that these can include about their parent’s welfare as well and 65% of men who are incarcerated feelings of shame, grief, guilt, aban- as their concerns about the parent’s have children.4 14,000 children of donment and anger, as well as social feelings for them.20 imprisoned parents annually enter stigma, disconnection from the par- It’s 8 a.m. Saturday morning. Tak- foster care, while an undetermined ent, poor school performance, im- ing the kids to see my ex at Martin number enter the juvenile system or paired ability to cope with future Correctional. He’s been in jail since adult prisons.5 Incarcerated parents stress and trauma, potential addic- 2009, prison since 2011. DUI Man- lose their parental rights at a dispro- tion and negative perceptions of police slaughter. Prison is better than jail portionate rate due to the Adoption and authority figures.15 School-age for visits because in jail, visits are and Safe Families Act (ASFA) which children exhibit school-related and truly behind a glass window with set time limits of 15 of the last 22 peer-related problems—poor grades, only phones to hear. And only two months for initiating TPR actions.6 unwillingness to go back to school, visitors at a time, so the kids had There are short-term and long-term aggression, although many of these to alternate. Sometimes the phones effects of a parent’s incarceration problems are temporary.16 Children didn’t work and we had to bounce on children. One in five children is are often teased or ostracized because around to empty cubicles looking present at the time of an arrest and of their parent’s incarceration; for for one that did. You couldn’t bring witnesses a mother being taken away older children, suspension and drop- your purse in, so no hand sanitizer by authorities.7 At least one study out rates are higher as a result.17 to wipe down the receivers. I tried has shown that these children suffer The most important determinants not to think about how many people nightmares and flashbacks to the ar- of child adjustment during the period coughed into those phones before rest incident.8 Providing information of incarceration are 1) the nature and us, but I never noticed a correlation to children about the arrest has met quality of the alternate caregiving between jail visits and colds. with pro and con arguments. Some arrangements and 2) the opportuni- The kids pile into the car with their say they should be protected from the ties to maintain contact with the im- iPhones and headphones. They’re information to minimize the trauma prisoned parent.18 Contact can take 17 and 20 now, not interested in the associated with the separation.9 Oth- many forms—letters, phone calls, and Pink Floyd or Earth, Wind & Fire ers argue that the failure to disclose in-person visits if distance permits. In downloaded on my phone. This is year by family, friends, and caregivers Florida, Securus Correctional Billing five of institutional visits for them. exacerbates the emotional distress— Services is the service to facilitate Although I can’t hear what I believe this is known as the “conspiracy of the phone calls. You can set up an is Teddi’s country music from the silence.” 10 Mothers are more apt to account with a credit card, a pre-paid passenger seat, the pounding heavy disclose than fathers, even when it credit card or by check. Programs to bass of Gideon’s Rap tunes won’t be comes to their own incarceration.11 aid incarcerated parents and their contained by headphones. “TURN The literature shows that children children are numerous and varied. In IT DOWN, PLEASE,” I say, with the who are uninformed of their parent’s Florida, many of them can be found at commensurate thumb gesture. After incarceration are more anxious and http://floridafamilynetwork.org/re- all, it’s not like he can hear me. I have 12 fearful, that children need to have sourcedirectory.html. Distance, of continued, next page 16 COMMENTATOR fall 2014

nothing tight or short. Occasionally, the thigh. Darlin,’ that’s a little close, The Kids Are Alright people get nailed for too tight or too doncha think? Teddi just smirks and from preceding page short, and then you have to go to the rolls her eyes. She’s had ‘friendlier’ Walmart a few miles down the road searches from TSA people. Shoes off, for a wardrobe change. Sandals are pick up the bottom of your feet, shake Teddi’s birth certificate in my wallet. okay, jewelry is okay. The younger out the shoe, ok, you’re good. Then we Even though she has a perfectly valid children are generally pretty quiet, go quickly through the metal detec- driver’s license for I.D., you still need but they seem to engage with the tor—no need to stand in the middle the birth certificate for minors. You others. They always get compliments of it with your hands over your head can’t argue with the guards about on the good shoes they have on. Some sucking in your stomach like at the how silly that rule is when the kid has folks have clear plastic pouches with airport. We go to the glass window a valid government-issued I.D. and their money and key in it, maybe no where the guard double checks our how far you’ve driven to make this pockets. For infants, you can bring in information in the computer. The visit. They will turn you away. They a small bag with the necessaries, dia- metal door slides open with a bang always win. In my pocket is $30 in pers, bottles, wipes, even a car seat, and roar. If the plane sounded like small bills (max allowable is $50 per although it will be searched of course. that there would be three less travel- person), my own driver’s license and The wait to first get inside can be as ers that day. We’re inside. key fob. Everything else has to stay in short as 20 minutes or as long as an It’s the commissary, a cafeteria. the car, including your full key ring. hour and a half. And then, once you Long rows of brown tables and chairs. Hollywood really took some license in get all the way inside and give the Signs taped to the ends of the tables Flight when Denzel’s kid visited him brown-uniformed guard your slip of designating which side is for inmates, at the end with the tape recorder to paper, you can wait another 30 min- which side is for visitors. White cin- interview his dad on the topic “The utes or so until they bring him down. der block walls. Two soda machines Most Important Person I Never Met.” The waiting is probably the hardest against the far wall, one Coke, one I would’ve cried during that scene part of it. Early on, during the first Pepsi. And two vending machines had I not been so caught up in the few visits, I had such contempt for the with snacks. There’s one concession mechanics of knowing that the bad waiting process. Don’t you know who stand manned by an inmate filling boy of a tape recorder would’ve been I am? What am I doing in this place, orders and making change. No point snatched up after hitting the metal we don’t belong here! The kids didn’t of sale machine (f/k/a cash register) detector. seem to mind though; I didn’t see but he seems to do okay with the The drive is 77 miles, about an contempt or anger in their eyes. Just change. It’s too early to hit the stand. hour and 15 minutes. Half a tank of expectancy and maybe some bore- We give another guard our paper with gas back and forth no matter how dom. The other families, including the Dad’s information on it and go outside you measure it. It’s almost a straight young children, patiently accepted to the yard to commandeer an empty shot, open road with no traffic. The the wait. Their inmates were loved picnic table before they fill up. The facility is pretty far west, out in the ones, and they wanted to see their kids prefer to be outside if it’s not too boonies, with lots of fields and an oc- dads, my kids too. Leave your pride, hot. The cafeteria is clean enough and casional cow. We pull up to the low ego, and narcissism somewhere else. the smell of various and sundry foods brown buildings surrounded by chain Reactions from those parts of you will being microwaved isn’t offensive. It‘s fences and rows and rows, top to bot- reinforce your children’s most primi- just dim and a bit claustrophobic in tom, of rusted coiled barbed wire. tive fears.21 We’ve waited longer to go there. Outside under the open sky There is plenty of parking. We sign in and see the doctor. I’ve had longer feels more normal. in, who we are, who we are visiting, waits at motion calendar. I learned to Our heads are resting on the pic- and his inmate number, 6-digits, easy cut the petulant crap. nic table when one of the kids sees to memorize. There are some picnic Once we get inside, my daughter him crutching through the campus. tables under a covered area opposite and I go into one room and my son “There he is!” They call to him. He the main building and we sit down to into another for a pat-down search. raises a crutch and waves to them. wait. It’s 9:20. Several other families We have a female guard of course. The energy picks up. The guards have are already there, a mix of Blacks, “Shake out your bra.” We shake. “No, to strip search him inside before they Whites, Hispanics. Some of them not like that—pull it out from the bot- send him out so it’s still another few have young children with them, rang- tom and shake it out.” We shake cor- minutes. ing from infants to what look to be 8 rectly. Arms out, legs shoulder-width As they see him come through the or 10-year-olds mostly. Everyone is apart. Rubber-gloved hands run from door to the outside, they stride over appropriately dressed, meaning loose our fingertips down along our bodies. to him and greet him with big hugs. clothing, no sleeveless or tank tops, When they get to the leg there is a They’re a lot faster getting to him no camouflage, no white tee-shirts, hand on the inside and outside of than him to them on the crutches. fall 2014 COMMENTATOR 17

I just stay seated. He put on prob- cards with their dad. Crazy-Eights or short line for them. While he is gone I ably 100 pounds in the first couple Spades. Once we found a chess board. make sure to thank their dad for the of years just in jail, but they’re used It was Dad and Teddi versus me and birthday money he had sent to them. to the seeing the extra weight. When Gid. I never knew that Gid was a bit Once when he was in with someone the weight gain was obvious in the of a Chess Master. Neither did his artistic, he commissioned a soccer beginning, Teddi laughed and said he dad. We both thought all non-academ- birthday card for Teddi etched in pen- looked like a Fat Santa. He laughed ic knowledge was limited to football. cil, a true professional job. I think the back. If you have canteen money, “It’s plays and strategy, geez.” guy charged him a dollar. No agents Snickers bars are tastier than bo- I finally make it back to the table there. She still has it. Gid comes back logna sandwiches. He lost most of with the concession haul. A spicy after a few minutes with the hot food his front crowns in the first year of chicken sandwich and a burger for on paper plates and slides it in front prison. No cosmetic dentistry there. him, popcorn and chocolate pudding of his dad. “Here, made it myself.” They don’t seem to notice the miss- for the kids, miscellaneous soft drinks. At 11:30 is Count. All of the in- ing teeth anymore either. He looks They didn’t have the chip-around mates, inside the cafeteria and out- whiter and pastier than last time (chipwich) he asked for so I thought I side, have to go the center of our yard against the pale blue prison uniform. made a brilliant selection of a frosted to be counted. For this area, it takes Death warmed over, but I don’t share honey bun instead. He looked at it, about 10 minutes. They do Count that thought. They help him prop his disappointed. “What’s the matter?” “I every day, several times a day. For crutches as he lowers himself onto the have a whole foot-locker full of honey the whole prison it actually takes an bench, Teddi next to him and Gid op- buns.” Apparently, honey buns are hour to an hour and a half for Count posite him next to me. The small talk pretty good for trading. Not as good to clear because they’re counting ev- starts, “how ya doin’? how are you? as cigarettes though, which are the eryone in the whole place. One time How’s everything…” Sixteen ways second most important commodity we arrived late, so by the time we to ask the same question, but there’s in prison. Toilet paper is up there too, got inside, Count had just started. time for the update on their lives to you only get one roll every 10 days. We had to wait for the entire prison unfold, visiting hours are until 3. It’s Like the hand sanitizer, I didn’t think Count to clear before he came down, 10:40 a.m. about what you did if you traded your about 3 hours all tolled. We always He and Gid start talking about his toilet paper. I took the bun, the size of made sure to leave much earlier after a lineman’s cleat, glistening through college classes. It’s time for me to take that experience. the package with creamy gooiness. the order and get on the concession When their dad comes back from There was nutritional information line. Inmates aren’t allowed to handle Count, he and Gid get involved in a printed on the back. “I’ll eat half of money. “What do you want today?” LeBron James discussion and then it.” The kids didn’t want any. I ate it Visiting days are the only times when it shifts to the World Cup. “Did you all, exceeding my caloric allotment for know that scoring seven goals in a the inmates get to eat anything with the day by 11:05 a.m. soccer game is like scoring 300 points flavor. I have everyone’s order and go Gid takes the burger and sandwich in a basketball game?” Who knew? inside to get on the never-ending line. to the microwave ovens inside. That’s Teddi doesn’t have the spectator They don’t need me there. Inside, I become the division of labor. I buy sport base for conversation and when see the young children in their good it; he nukes it. The ovens don’t heat there’s a break in the conversation shoes. The signs on the edge of the very quickly and sometimes there’s a continued, next page tables about who stays on what side don’t mean anything to them and the guards aren’t strict with the place- ment when it comes to the little ones. There are board games like Chutes n Ladders and Sorry!; some families are engaged in them. Plastic blocks are See what’s new... on the table for the real little ones. I try not to think about hand sanitizer. Visit the Family Law Section Website! One little girl giggles hysterically just because her dad keeps placing a bag of potato chips on her head and snatching it off with an “Ooops!!” Ten www.familylawfla.org times, twenty times, it was her game. Cards were more popular with adult visitors. Sometimes my kids played 18 COMMENTATOR fall 2014

size. Teddi asked what he was in for. Doreen Inkeles is a Board Certified The Kids Are Alright “I don’t know, he doesn’t like to talk Specialist in Marital & Family Law. from preceding page about it.” He told the kids that when She has been practicing family law he was in the Dade County facility, he for over 20 years. Doreen received her was there with the Raiders’ Center law degree at St. Thomas University I ask her if she told her dad what who decided not to show up for the School of Law and her undergraduate she got on her A.P. English exam, or Superbowl. On the highest throne in degree from Emory University. Doreen the activities she was doing senior the world, we still sit only on our own resides in Coconut Creek, Florida. She year, or the upcoming college visits. bottoms22. has two teenagers, a senior in high She’s not as effusive as Gid, but oc- It’s 1:15. There are more lulls in the school and a junior in college. casionally she will put her head on conversation. I say its time to go. He his shoulder while he pats her hair asks if we could make it 1:30. I say ok. Endnotes and she laughs at his stories about By the end of the visit he has more 1 Michael Lee Owens, Comment, Civil Liber- his more off-beat roommates, like color and life in his face, not so white ties/The Guardian, Aug. 19, 2013. the one who ate pencils so he could and pasty. The soul is healed by being 2 National Resource Center on Children and Families of the Incarcerated, Factsheet ( 2010) be sent to the infirmary. She has no with children23. He walks us back problem sharing food with him and 3 Glaze and Maruschak, “Parents in Prison into the commissary so we can get to and Their Minor Children,” Bureau of Justice her eyes always well up when it’s the exit. The kids hug him goodbye. Statistics, Special Report (Aug. 2008). time to leave. His hands have been “When are you coming back?” I know 4 See Note ii. 5 See Note i. flapping and tapping the whole time, it’s going to be awhile because Gid is something that could not have gone 6 See Note i. going back to school soon for football 7 Parke and Stewart, “Effect of Parental unnoticed. “What’s wrong with your camp, and Teddi does better when Incarceration on Young Children” (2001). hands?” “Anxiety.” “Oh. Do they give her big brother is with her. They had 8 Id. (Parke and Stewart). you something for it?” “Yeah.” Doesn’t a nice visit. A little deception would 9 Id. (citing Becker & Margolin, 1997) seem to be working very well, I think. 10 Ross and Parke. not be uncalled for. “Soon.” 11 Id. My job is not prison reform. I ask The kids sleep in the car the whole 12 Id (citing Johnson, 1995) the two men if they know how much ride home. When they get home, they 13 Id. (citing Nolen-Hoeksema and Larson money LeBron makes. go back to their phone apps and their (1999. It’s 12:15. We’re going to leave by friends, just another day. I know they 14 Id. (citing Johnson, 1975). 1. I tell him that so he knows. I go 15 See Note 1. are better for having made the visit. 16 Park and Ross (citing Sack et al 1987). back to the concession-line to get When Teddi was in 5th or 6th grade, 17 Park and Ross (citing Trice, 1997). a better second course of desserts. she read The Velveteen Rabbit and 18 Park and Ross The kids just want sodas. When I get insisted I read it, too. He didn’t mind 19 Park and Ross (citing Hairston, 1991). back, the conversation has turned to how he looked to other people, because 20 Park and Ross (citing Sack, 1977). 21 Henry Cloud the Tampa Bay Buccaneer inmate the nursery magic had made him 22 Michel de Montaigne, The Complete Essays. in the commissary who had also not Real, and when you are Real shabbi- 23 Fyodor Dostoyevsky.” gone unnoticed. Gid marveled at his ness doesn’t matter.24 24 Margery Williams, The Velveteen Rabbit

SAVE THE DATE! Out of State Retreat San Juan, Puerto Rico April 8-12, 2015 La Concha Renaissance Resort Hotel fall 2014 COMMENTATOR 19 Beyond Thunderdome By Jerry Rumph, Esquire, Tallahassee

The Tallahassee ship, the TBA has remained com- from the local family law bar and Bar Association mitted to the mission of its Legal attorney-participants from other lo- (TBA) is a uni- Aid Foundation and has charged a cal law firms. Fifteen to twenty par- fied voluntary bar pro bono committee with the task of ticipants were sought; twenty-one organization. In increasing legal representation for applications were received. Due to 1969, the prede- indigent persons in need of represen- their great diversity and qualifica- cessor to The Le- tation. Most significantly, under the tions, including one non-family law gal Aid Foundation leadership of Anne Munson, Legal attorney with thirty years of legal of the Tallahassee Aid Foundation’s executive director, experience, all twenty-one appli- J. RUMPH Bar Association, and with the assistance and financial cants were selected to participate in Inc. was formed and the Tallahassee sponsorship of the Young Lawyers’ the inaugural class. Bar Association has been dedicated Section of the Tallahassee Bar As- In Thunderdome Tallahassee, to pro bono service ever since. For sociation, the Legal Aid Foundation participant attorneys are assigned much of its history, the Tallahas- has launched its inaugural class of a pro bono family law case, which see Bar Association has required Thunderdome Tallahassee, a hands- they handle over the course of the its members who have been admit- on legal group training program to program. Cases are screened for ted to the Florida Bar for less than provide education, camaraderie, net- program suitability by committee twenty years to perform pro bono working, mentoring, leadership and members. services, mainly through Legal Aid recognition to a new generation of The program will last for nine Foundation. lawyers serving the community.1 months, beginning in September However, the Tallahassee Bar As- Thunderdome Tallahassee is mod- 2014. During classes, participants sociation had been struggling with eled after Thunderdome programs in receive instruction on a variety of drastically declining membership Chicago and Connecticut. However, topics, including client interaction, numbers in the late 2000s and in those programs were more limited diversity, and all substantive fam- 2012, the organization voted to re- and were intended for simplified dis- ily law topics, such as child support move its mandatory pro bono re- solutions of marriage. Thunderdome and equitable distribution. Some quirement. Tallahassee is taking the project to classes will include panels composed Since then, membership has begun the next level by addressing nearly of the local judiciary. The Thunder- to increase. Unfortunately, the num- all family law matters. In addition, dome Tallahassee classes are also ber of Legal Aid Foundation pro bono Thunderdome Tallahassee is trying approved for CLE credits, including cases has skyrocketed as well. Like to model aspects of Leadership Tal- marital and family law certification many communities, most of the cli- lahassee, a leadership development credits, by the Florida Bar. ents coming to Legal Aid Foundation and community service program of In addition to classroom training, seeking pro bono representation are the Greater Tallahassee Chamber participants are assigned to a fam- struggling with family law matters, of Commerce. ily law mentor. Mentors will assist such as divorce, post-divorce, parent- To start Thunderdome Tallahas- participants in handling their cases ing, and child support issues. see, Anne Munson and the Young and are encouraged to attend classes But many TBA members have ex- Lawyers’ Section of TBA submitted with participants. The mentors have pressed fear of accepting a family applications for grants and sought access to a mentor panel. The mentor law pro bono case for several rea- sponsors to fund the program. Once panel will make decisions about case sons: members do not practice fam- sufficient funding was secured, Ms. reassignment, withdrawals, and pro- ily law, some don’t know the ins and Munson formed a Thunderdome vide other support as necessary. If a outs of family law procedures and committee, which included herself, participant works through his or her family law cases are too emotion- local attorneys, FSU law profes- case quickly, another pro bono case ally charged. For many members, sors, Second Judicial Circuit Judge will be screened and assigned to that accepting a family law pro bono case George S. Reynolds, III, and com- participant. Participants and men- is overwhelming. munity leaders. Committee members tors have committed to remaining Despite removing its mandatory established a curriculum, developed with their cases until case comple- pro bono requirement for member- program forms, and sought mentors continued page 22 20 COMMENTATOR fall 2014

2014 Leadership Retreat - Palm Harbor, FL fall 2014 COMMENTATOR 21 22 COMMENTATOR fall 2014

Beyond Thunderdome from page 19 tion, even if case completion occurs after the first Thunderdome Tal- lahassee class finishes the program. Through education, experience, mentorship, and interaction with JOIN THE FLORIDA BAR’S the local judiciary, the Thunderdome Tallahassee curriculum directly ad- Lawyer Referral Service! dresses a non-family law attorney’s fear of accepting a pro bono family Every year, The Florida Bar Lawyer Referral Service Staff makes law case. As a direct result, Tallahas- thousands of referrals to people seeking legal assistance. Lawyer see’s indigent population will receive Referral Service attorneys annually collect millions of dollars in fees from greater access to courts through com- Lawyer Referral Service clients. mitted, competent representation. The Florida Bar Lawyer Referral Service: For more information on Thun- CONTACT THE derdome Tallahassee, please visit FLORIDA BAR • Provides statewide advertising TODAY FOR MORE legalaidtallahassee.org. You can also • Provides a toll-free telephone number INFORMATION. participate in LAF’s Like-a-thon for their Facebook page at www.face- • Matches attorneys with prospective clients book.com/LegalAidFoundationTal- lahassee. • Screens clients by geographical area and legal problem • Allows the attorney to negotiate fees Jerry L. Rumph, Jr., is an attorney at the Law Office of Linda A. Bailey, • Provides a good source for new clients P.A., where he practices exclusively marital and family law. Jerry prac- CONTACT THE FLORIDA BAR TODAY FOR MORE INFORMATION. tices marital and family law because he is able to make a meaningful dif- The Florida Bar Lawyer Referral Service, 651 E. Jefferson St., Tallahassee, FL 32399-2300, phone: 800/342-8060, ext. 5807. Or download an application from The ference in the lives of persons expe- Florida Bar’s website at www.floridabar.org. If your office is in Broward, Pinellas, riencing difficult situations. Previ- Collier, Miami-Dade, Escambia, Santa Rosa, Hillsborough, Baker, Duval, Clay, ously, Jerry was a shareholder at Nassau, Lee, Orange, Palm Beach, Leon, Franklin, Gadsden, Jefferson, Liberty or Grant & Rumph, P.A., where in addi- Wakulla Counties, please contact your local bar association lawyer referral service. tion to marital and family law, Jerry practiced in the areas of business law, commercial litigation, and real property law. Jerry was admitted to the Florida Bar in 2010 after gradu- ating from Florida State University Cover Photos Needed!!! with a Juris Doctor and a Master of Business Administration. Jerry YOU COULD HAVE YOUR PHOTO PUBLISHED! received a Bachelor of Arts from the University of South Florida. If you would like to submit a large format photo for Endnotes consideration, please email it to Commentator 1 See Ellen Piekalkiewicz, Legal Aid Foun- dation launches Thunderdome Tallahassee, Co-Editor, Amy Hamlin at [email protected], or The Tallahassee Democrat, (June 23, 2014) available at http://www.tallahassee.com/ Co- Editor, Sarah Sullivan, at [email protected]. story/life/causes/2014/06/23/legal-aid- foundation-launches-thunderdome-tallahas- see/11256941/ fall 2014 COMMENTATOR 23 Vaccinating Problems By Ronald H. Kauffman, Esquire, Miami

When Jacob sue brought to trial, and traces the Double Dose: McGrath and Holmes turned one, development of religion as a factor in Winters his pediatrician parental responsibility cases. McGrath v. Mountain was a pater- administered the nity action.18 The parents entered MMR II vaccine Getting to the Point: into a partial agreement but could in conformity with Ultimate Responsibility not agree on whether the child should the recommenda- Generally, shared parental respon- be immunized. The parents went to tions set by the sibility is a relationship ordered by court on the immunization issue Centers for Dis- a court in which both parents retain alone.19 R. Kauffman ease Control and their full parental rights and respon- The Father’s case-in-chief focused Prevention. Within nine days, he was sibilities. Under shared parental re- on the health benefits of immuniza- having seizures. Six months later sponsibility, parents are required to tion. The Mother, a chiropractor who Jacob was dead.1 confer with each other and jointly used holistic medicine and home- After the whooping cough vaccine make major decisions affecting the opathy in treating her son, opposed was invented in the 1940s, many welfare of their child.12 immunization. The Mother’s case thought the highly contagious disease In Florida, shared parental respon- consisted of evidence to support her had been conquered. Yet in 2010, a sibility is the preferred relationship position on both medical and religious whooping cough outbreak in Califor- between parents when a marriage or grounds. nia killed ten infants and hospital- a relationship ends. In fact, courts 2 The trial court ruled that it would ized hundreds. Studies would later are instructed to order parents to be in the child’s best interest to al- prove that unvaccinated children fu- share parental responsibility of a 3 low the mother to make the ultimate eled the California tragedy. child unless it would be detrimental decision regarding the child’s immu- With each new school year, some to the child.13 parents argue whether to immunize Issues relating to a child’s physi- nization. The court did not offer any their children4 and the majority do.5 cal health and medical treatment, further findings on the religious or However, a minority of parents object including vaccinations, are major public safety controversy over vac- to vaccinations.6 A few objectors as- decisions affecting the welfare of a cinations. sert their individual liberties.7 Oth- child. When parents cannot agree, The Fifth District affirmed. Apply- ers are risk averse to the potential the dispute is resolved in court.14 At ing a competent, substantial evidence impact of vaccinations.8 Celebrity the trial, the test applied is the best standard, the McGrath court ruled anti-vaccination campaigns, a new interests of the child.15 that the trial judge had sufficient form of McCarthyism, confuse many.9 Determining the best interests of a evidence before it to support the de- Primarily though, objecting parents child is no longer entirely subjective. cision and declined to substitute its hold sincere religious beliefs against Instead, the decision is based on an judgment for that of the trial judge’s. immunization.10 evaluation of 20 statutory factors, It is important to remember that There are two vaccination opinions and one equitable catch-all factor, in McGrath, the Mother introduced in Florida, and the facts in each are affecting the welfare and interests of evidence to support her position on strikingly similar. In both cases, the the child and the circumstances of the medical grounds, not just religious parents shared parental responsibil- child’s family.16 grounds. Unfortunately, the McGrath ity. Both involved chiropractors as The legislature has given a booster panel did not address the impact of parents who were involved in their to the statute by authorizing one par- the Mother’s religious views, or the children’s health care. Moreover, in ent to have ultimate responsibility risk of harm to the child that vaccina- both cases the health care profes- for certain decisions.17 For example, tions may or may not cause. sional parent opposed vaccinations.11 health care is an area of ultimate re- In Winters v. Brown the Mother was Ironically, the outcomes in the two sponsibility a court can award. When also a chiropractor and proponent cases were very different. a decision on vaccination goes to trial, of holistic medicine.20 A tenet of the This article briefly examines the the court does not make the decision Mother’s beliefs was that God created parental responsibility statute, the to vaccinate a child. Instead, the court the human body with an innate im- two Florida cases in which the deci- grants one parent ultimate responsi- mune system that enabled the body sion to vaccinate a child was an is- bility to make that decision. continued, next page 24 COMMENTATOR fall 2014

cause physical and serious harm to The Mother appealed the restrictions Vaccinating Problems the minor child.” Based on the finding as a violation of her free exercise of from preceding page of harm, the judge determined that it religion. was in the best interests of the child The First District reversed, and to award the Father ultimate respon- held the trial judge’s restrictions to heal itself. Anything introduced sibility regarding vaccinations. were unconstitutionally overbroad into the body to prevent disease or The Fourth District affirmed based and expressly restricted the Mother’s treat illness is against the will of solely on a substantial competent free exercise of her religious beliefs God. The Mother fervently opposed evidence review. The opinion did note and practices. However, the Rogers vaccinations on religious grounds. that court ordered restrictions on court approved consideration of the The Mother was not only a health- religious practices have generally Mother’s religious beliefs as “one of care professional, she was also very been overturned, but concluded that several factors aiding in its child cus- involved in her child’s health care. religious practices can be restricted tody determination.” The panel con- The Mother never vaccinated the when there is a clear, affirmative cluded that the trial judge could not child, but instead obtained Florida’s showing that they “will be harmful condition custody on her curtailment lawful exemption from immuniza- to the child.” As will be discussed of a religious activity or belief. tion.21 Evidence introduced at trial below, Winters is not the first time Mesa v. Mesa, was a case of first confirmed that the child was healthy that religion needled its way into a impression in Florida.24 In Mesa, the without vaccinations, and that the marital dispute. court considered a trial order which child had suffered no harm to date chose between two parents’ religious from not being immunized. Injecting Religion into beliefs and practices. The parents were members of different churches. Conversely, the Father wanted the Parental Responsibility child to receive traditional medical The Mother’s church was found to care, including vaccinations, and the Decisions be more “charismatic,” but there was issue was brought to trial. The trial Religion, religious beliefs, and reli- never evidence the Mother’s church court held three hearings to deter- gious practices are not specific statu- was harmful to the children. mine responsibility for the minor tory factors in determining parental After a trial, the judge awarded child’s health care. Both parties in- responsibility. Nor are they areas primary residence to the Father, pro- troduced experts to testify about the in which a parent may be granted hibited the children from attending life safety and effectiveness of vac- ultimate responsibility. Instead, the the mother’s religious services and cinations. weight religion plays in custody dis- prohibited the Mother from educating The Father’s expert testified that putes incubated over time in various the children in her religious practices. vaccinations are safe and effective cases.22 The Fourth District overturned the and that children who are not vac- The earliest Florida case in which trial court’s prohibition. The Mesa cinated are at increased risk for religion was a factor in deciding pa- panel noted that courts around the problems with infections. Moreover, rental responsibility was the First country had been consistently over- children who are not vaccinated put District case of Rogers v. Rogers.23 In turning restrictions on religion un- other children at risk of harm in their Rogers, the appellate court consid- less there was a clear, affirmative schools and where they play. ered a final judgment restricting one showing that these religious activities The Mother’s expert testified that parent from exposing the children to will be harmful to the child.25 one in five children in this country that parent’s religion. The rationale for the Mesa hold- suffer from some form of neurode- The Mother was a member of The ing is that allowing a court to choose velopmental disorder, so we have to Way International, and the Father between two parents’ churches, reli- question the role vaccines play in introduced evidence that The Way gious beliefs and practices – in the introducing toxic materials into the made the Mother an unfit parent. absence of a clear showing of harm to brain, and impairing the protection He alleged The Way psychologically the child – violates the First Amend- that children have with the blood- brainwashed her, that she had be- ment as established in Rogers. brain barrier. The Mother’s expert come obsessed, and was neglecting In Abbo v. Briskin, the same court concluded that “it’s less harmful for the children. that decided Mesa, held that a trial a child not to be vaccinated than it is The trial judge awarded custody to judge cannot order a parent to raise for a child to be vaccinated.” the Mother provided that she sever a child in a particular faith – even The trial court found the issue was all connections, meetings, tapes, vis- if there was an agreement between not “simply exposing the minor child its, communications, or financial sup- the two parents to raise the child in to the mother’s religious beliefs and port with The Way, and not subject a particular religion.26 practices,” but an issue “that could the children to any of its dogmas. When the parents met, the Mother fall 2014 COMMENTATOR 25 was Catholic and the Father was ing parent will have deep religious after he was found guilty of deliberate fraud.) Available at http://www.bmj.com/content/340/ Jewish. Prior to marrying, the Mother beliefs about vaccinations. bmj.c1127?view=long&pmid=20395277. verbally agreed to convert to Juda- In considering the religious practic- 10 See §1003.22(5)(a), Fla.Stat. (2013) (“The ism. Shortly after the birth of their es and beliefs of a parent, courts have parent of the child objects in writing that the daughter, the mother converted back to avoid religious discrimination, yet administration of immunizing agents conflicts with his or her religious tenets or practices.”). to Catholicism and filed for divorce. protect children from harmful reli- But see Steve Leblanc, Parents use religion to The principal dispute at trial was the gious practices. Vaccination disputes avoid vaccines, USA Today, October 18, 2007. child’s religion. are interesting and high-stakes cases Available at http://usatoday30.usatoday.com/ news/health/2007-10-18-religion-vaccines_N. While the trial judge designated to watch for as the new school year htm?csp=34 the Mother as the primary custo- approaches. 11 It is no coincidence the objecting parents dial parent, he ordered her to raise were both chiropractors. The primary belief the child Jewish based on her prior of the chiropractic profession is in natural Ronald H. Kauffman is board methods of health care. Chiropractors believe verbal agreement to convert to Juda- certified in marital and family law, the human body has the ability to heal itself ism. After rehearing, the judge also and practices in Miami. He currently without surgery or medication. See Chiroprac- ordered her not to interfere in the tic Philosophy, American Chiropractic Associa- serves as Chair of the Commentator. tion, available at http://www.acatoday.org/lev- child’s Jewish upbringing or to influ- el3_css.cfm?T1ID=13&T2ID=61&T3ID=149 ence the child’s religious training in Endnotes 12 See §61.046(17), Fla.Stat. (2014). any direction other than Judaism. 1 See Holmes v. Merck & Co., Inc., 697 F.3d 13 See §61.13(2)(c)(2), Fla.Stat. (2014). The Mother appealed. 1080, 1081 (9th Cir. 2012). 14 See Tamari v. Turko-Tamari, 599 So.2d 680, Abbo is unique because the ruling 2 See Kathleen Winters MPH, California per- 681 (Fla. 3d DCA 1992). tussis epidemic, 2010, The Journal of Pediatrics 15 See Sotnick v. Sotnick, 650 So.2d 157 (Fla. was based on the parents’ agreement, (Dec. 2012). 3d DCA 1995). not the ‘best interests of the child.’ 3 See Mary MacVean, Unvaccinated children 16 See Id. The Abbo panel held that the court helped fuel whooping cough outbreak, data 17 See §61.13(2)(c)(2)(a), Fla.Stat. (2013). could not compel raising a child in a show, Los Angeles Times, (October 5, 2013). 18 784 So.2d 607 (Fla. 5th DCA 2001). certain religion based on the parents’ 4 There is a difference between vaccinations 19 Id. at 608. and immunizations. A vaccination is an injec- 20 51 So.3d 656 (Fla. 4th DCA 2011). agreement that one of the parents tion of a killed or weakened organism that convert – especially after the parent produces immunity against that organism. 21 Id. at 657. has had a good faith change of reli- Immunization is the process by which a person 22 See Deborah Marks, Religious Freedom v. Parental Responsibility Determinations, 72 27 becomes protected from a disease. See Basics, gious conscience. Contrary to the available at http://www.vaccines.gov/basics/. Fla.B.J. 62 (Aug. 1998). Rogers line of cases, the Abbo court 5 See §1003.22, Fla.Stat. (2014). See also, 23 490 So.2d 1017 (Fla. 1st DCA 1986). found “[t]here is absolutely nothing Ryan Jaslow, CDC: Vaccination rates among 24 652 So.2d 456 (Fla. 4th DCA 1995) kindergartners high, but exemptions worri- 25 See Id. at 457. in the statutory listing that expressly some, CBS News (August 1, 2013) (CDC re- makes the religious training of the searchers found 94.5% received the MMR 26 660 So.2d 1157 (Fla. 4th DCA 1995). child a factor that the court should doses.) Available at http://www.cbsnews.com/ 27 See also Sotnick v. Sotnick 650 So.2d 157, 160 (Fla. 3d DCA 1995)(Finding “the great consider.” news/cdc-vaccination-rates-among-kindergart- ners-high-but-exemptions-worrisome/ weight of legal authority is against enforce- 6 See The History of Vaccines: a Project of the ment of such [religious training] agreements” Parting Shots College of Physicians of Philadelphia, available and that “the statutory procedure for shared at http://www.historyofvaccines.org/content/ parental responsibility is controlling instead.”). Vaccinations are safe but carry articles/cultural-perspectives-vaccination (last 28 In addition to speaking out against immu- risks parents want to avoid. The in- visited November 11, 2013). nizing children against deadly infectious dis- eases, Jenny McCarthy is helping to introduce 7 See Jacobson v. Mass, 197 U.S. 11 (1905) creasing outbreaks of vaccine pre- a new generation of youth to nicotine addic- (Finding Cambridge’s compulsory vaccination ventable illnesses, such as the 2010 tion as the spokesperson for Blu e-cigarettes. for smallpox was a legitimate exercise of police See E-cigarette use more than doubles among California whooping cough epidemic powers.). U.S. middle and high school students from show it can be more lethal not to 8 See 42 U.S.C. §300aa-10(a) (Establishing 2011-2012, CDC Press Release, (September inject. Given the high risk of harm the National Vaccine Injury Compensation 5, 2013) available at http://www.cdc.gov/ from being unvaccinated, finding the Program, more popularly known as “vaccine media/releases/2013/p0905-ecigarette-use. court”, in which compensation may be paid for html. The irony of Jenny McCarthy speaking refusal to vaccinate is not in a child’s vaccine-related injuries or deaths.). out against toxic vaccines, yet promoting toxic best interest seems like a sure shot. 9 See e.g. Generation Rescue available at nicotine inhalers for a ‘Big Tobacco’ company, However, cases are never so sterile. www.generationrescue.org (listing Jenny Mc- is not lost on many. See e.g. Michael Sebastian, Carthy, as president, and issuing a statement Jenny McCarthy to Star in Latest Blu E-Cig For instance, not every parent object- in support of the Andrew Wakefield paper link- Commercials, Ad Age, (Aug. 2013) (“I don’t ing to vaccinations is going to be a ing vaccinations and autism.) But see Brian think that it’s their finest marketing hour,” said cigarette company spokesperson who Deer, Wakefield’s “autistic enterocolitis” under Peter Hamm, of the Campaign for Tobacco-Free the microscope, British Medical Journal (2010) Kids.”) available at http://adage.com/article/ lectures people about public health in (Noting Andrew Wakefield’s paper linking media/jenny-mccarthy-star-latest-blu-e-cig- her free time.28 More likely, the object- autism to the MMR vaccination was retracted commercials/243420/. 26 COMMENTATOR fall 2014 Different Roles Psychologists and Mental Health Professionals Play in Your Case By Deborah O. Day, Psy.D., Winter Park

Family lawyers Mental Health Counseling. Florida that “the court may appoint a licensed and judges have Statute 491.003(c) states “this defini- mental health professional or other recognized the tion shall not be construed to permit expert for an examination, evalua- important roles any licensed, provisionally licensed, tion, testing, or interview of any minor psychologists and registered, or certified pursuant to this child or to conduct a social or home mental health pro- Chapter to describe or label any test, study investigation.” Choosing your fessionals play in report, or procedure as psychological, expert should be based on credentials, their family law except to relate specifically to the defi- training, experience, and reputation. cases. This be- nition of practice authorized in this There are a variety of different roles D. DAY comes particularly subsection.” Individuals qualifying for mental health professionals. They true when there are complex issues under Chapter 491 for licensing can include psychotherapists, Guardian- within the family system. Selecting have a Master’s degree or a Ph.D. If ad-Litem (GAL), social investigators, the right professional for the right the Ph.D. does not relate specifically parenting plan evaluators, Parenting role in the case is often challenging. to the qualifications under Chapter Coordinators, trial consultants, work It is important to plan ahead and ap- 490, the professional may use the title product review experts, and educa- propriately identify the needs in your “Dr.” but may not identify themselves tional experts. This article briefly re- case along with the needs of the fam- as a psychologist. views each of these roles. ily. This article is a discussion about The term “psychotherapist” is a Psychotherapists provide essential the multiple roles available to assist generic title that can be used by all services to families as they navigate in that process. mental health professionals. Custody the emotional stages associated with Let’s begin with a discussion about evaluators and parenting plan as- the dissolution of their family. Psy- the credentials for various mental sessors are not defined by licensing chotherapists differ in their skills health professionals. Licensed psy- statute but defined under Florida and knowledge of family law. It is chologists can either have a Psy.D., Statute 61.20 Social Investigation important to select a psychothera- Ph.D., or Ed.D. In order for a profes- and Recommendations regarding a pist based on their knowledge and sional with one of these degrees to be Parenting Plan. These assessments experience in a particular case. There licensed as a psychologist, they must shall be conducted according to the is debate whether there is compat- qualify under Florida Chapter 490. statute, the social investigation study ibility between therapeutic and fo- School psychologists also qualify un- “shall be conducted by qualified staff rensic roles. An argument provided der this statute, although they have of the court; a child-placing agency in S.A. Greenberg and D. W. Shuman different qualifications and areas of licensed pursuant to Florida Statute (1997) says that therapists violate practice. Florida Statute §490 was 409.175; a psychologist licensed pur- ethics when they provide expert fo- designed to distinguish psychological suant to Chapter 490; or a clinical rensic testimony citing “irreconcil- services from other mental health social worker, marriage and family able conflict between these roles.1” In services and to ensure the practice therapist, or mental health counselor contrast, Heltzel acknowledges that of psychology and school psychol- licensed pursuant to Chapter 491.” It there are clear challenges; however, ogy were provided by qualified pro- is important to recognize that under she concludes that the roles of thera- fessionals. The statute establishes §61.122, psychologists are the only pists and expert witnesses are indeed the principle that unqualified per- identified mental health professional comparable2. sons present a danger to the public’s in which the court addresses the pre- The purpose of Parenting Coordi- health, safety, and welfare. sumption of good faith in developing nation is to provide a child-focused Mental health professionals li- a parenting plan recommendation. alternative dispute resolution pro- censed under Chapter 491 include Florida Family Rule of Procedure cess. The Parenting Coordinator (PC) the Board of Clinical Social Work, 12.363 also specifically addresses the can assist the parents in creating or Marriage and Family Therapy, and Evaluation of Minor Child, stating implementing a parenting plan, offer fall 2014 COMMENTATOR 27 education, make recommendations, of Minors for the Purpose of Address- Attorneys may engage a consul- and with prior approval of the parents ing Custody, Residence, or Visitation tant who provides support to the par- and court, make limited decisions Disputes, Dissolution of Marriage, ent participating in the evaluation, within the scope of the court’s order Support, or Timesharing Action. which includes education about the on referral3. Parenting Coordinators The Administrative rule states that nature and purpose of the assess- shall be licensed under Chapter 490 “it is a conflict of interest to serve as ment. The consultant usually per- or 491 or a physician licensed under a Guardian-ad-Litem, mediator, ther- forms this function before the evalu- 458, be certified by the Florida Su- apist, Parenting Coordinator, or to ation takes place or while it is being preme Court as a Family Law media- have treated anyone previously.” The conducted. Please note that education tor with at least a Master’s degree in American Psychological Association is not coaching, and coaching has a mental health field, or be a member Guidelines for Child Custody Evalu- been identified as an inappropriate in good standing of the Florida Bar. ations in Family Law Proceedings role for psychologists and mental The statute requires the professional are no longer included in the Florida health professionals. The Association be three years post-licensing and at- Administrative Code, however play of Family and Conciliation Courts tend a twenty-four hour parenting a vital role in setting the minimum (AFCC) Child Custody Consultant coordination training. Confidentiality standard for these evaluations. The Task Force identified rehearsing the of communication is identified and APA guidelines state, at minimum, litigant’s responses to questions on states that the Parenting Coordinator the evaluation must include an evalu- standardized tests, coaching answers, may not testify or offer evidence about ation of both parents or legal guard- encouraging a litigant to make tem- communications made by, between, or ians, including observation, test re- porary or insincere changes in be- among the parties and the Parenting sults, and impressions. Evaluation havior solely for strategic positive Coordinator during Parenting Co- of the children identified in the court impression management reasons, ordination sessions (61.125(7) with order, including observations and or suggesting that a litigant with- seven exceptions. when appropriate, test results and hold important information are un- Guardians-ad-Litem (GALs) are impressions, the description of inter- acceptable and unethical behaviors 6 often appointed to investigate al- actions between each parent or legal for a consultant . The consultant can legations in the pleading affecting guardian and each child identified speak with the attorney about the forensic mental health evaluation, the child, and include interviews in the court order must be included. Additionally, the psychologist should review the quality of the assessment, of the child, various witnesses, and gather collateral sources of informa- and aid the attorney by providing other persons having information tion as needed; and request medical direct or cross-examination questions concerning the welfare of the child4. records as needed5. of the evaluator. If the consultant The GAL has the ability to request Parents have an important interest meets with the party, in very rare the court order expert examinations at stake in the outcome of forensic cases would that consultant provide of the child, the child’s parents, and mental health evaluations. There testimony. Because the consultant other parties in the action. That order are a range of functions for mental assists with the development of trial can include examination by medical health professionals once a parenting strategies, the consultant remains doctors, dentists, psychiatrists, psy- plan evaluation has been completed. confidential and is not available for chologists, and other mental health The attorney can confidentially re- deposition or trial. professionals. According to Chapter tain a work product review expert Occasionally, the attorney may seek 61.404, “the GAL shall maintain as to provide a critical analysis of a an educational consultant. This psy- confidential all information and doc- colleagues’ child custody evaluation chologist or mental health profes- uments received by any source, except or parenting plan assessment. This sional is hired to provide the court at the GAL’s discretion, or by report review includes a critical reading of education/limited information, not offered to the court, or as directed by the evaluation report, the underlying directly about the person or family the court.” documents relied on to render the being evaluated. An example of hir- As discussed previously, social report, and offer advisory feedback ing an educational consultant might investigators and parenting plan to the retaining attorney regarding be for the sole purpose of explaining evaluators are regulated by Flori- the methods utilized to reach the to the court different psychological da Statute §61.20, and the Family conclusions. Ethical standards for theories and models utilized by pro- Rules of Civil Procedure. Additionally, work product reviews are set out fessionals in relocation cases, child Florida psychologists are regulated in the American Psychological As- sexual abuse cases, or certain psycho- by the Florida Administrative Code sociation’s Ethical Principles of Psy- logical conditions, specific psychologi- 64B19-18.007. The Administrative chologists and Code of Conduct and cal tests, or mental illness. Code identifies the Requirements for the Specialty Guidelines for Forensic Remember, it is improper for ex- Forensic Psychological Evaluations Psychologists. continued, next page 28 COMMENTATOR fall 2014

social investigator and parenting Dr. Day received her Doctorate in Roles of Professionals plan evaluator, will need the assis- Clinical Psychology from Florida from preceding page tance of attorneys to develop their Institute of Technology and is a presentation to the court. This as- Licensed Psychologist, Licensed sistance includes a review of the ex- Mental Health Counselor, and Cer- perts to express an opinion about pert’s expert credentials, background, tified Family Mediator. Dr. Day is credibility of another expert or on the achievements, writings, and experi- in private practice with Psychologi- validity of another expert’s opinion7. ence. The attorney should have their cal Affiliates, Inc., of Winter Park, From the cases, experts can be asked expert ready to discuss all the infor- Florida. Her practice specialties in- how an expert’s conclusion differs mation and materials used to arrive clude forensic psychology including from another expert’s conclusion to at their opinions and to feel comfort- divorce/parenting plan evaluations, show that the other expert failed to able that their opinions are based on consider proper factors8. Additionally, a reasonable degree of psychological collaborative law practice, Facti- Florida Rules of Evidence 90.706 says probability. Prepare your expert to tious Disorders (Munchausen By that statements of facts or opinions explain and defend any assumptions Proxy), child abuse, and criminal on a subject may be used in cross- made in arriving at the opinion and matters. She has testified regarding examination of an expert witness. ensure that your expert understands numerous psychological issues and Most of the above identified issues, the difference between advocating presents professional workshops and with the exception of the GAL and and defending their opinions. seminars throughout the country.

A SUMMARY OF DIFFERENT ROLES OF PROFESSIONALS IN FAMILY LAW CASES

Deborah O. Day, Psy.D. LMHC/Licensed Psychologist Certified Family Mediator

Kyle J. Goodwin, Psy.D. Licensed Psychologist

2737 W. Fairbanks Avenue Winter Park, Florida 32789 407-740-6838/407-740-0902 (Fax) www.psychologicalaffiliates.com APPOINTMENT BY IMMUNITY PARTY DESCRIBE FUNCTION COURT OR EXCEPTION BOARD/BAR PAYMENT TO STIPULATED HEARSAY MALPRACTICE CASE GAL Neutral Agent Investigator, Fa- Y FS61.403b Y Decided in Y of the courta cilitate, Advocate, FS61.401 Can get a waiver/ FS61.405 court order. Monitor stipulated order. AAL Advocate as Represents Child, Y N N Court shall N provided by Follows all attorney Serves essential decide. the law 4-1.2c rules, role of advocating in (4-1.14)d. court so child is represented.

PC Child focused Rarely sees child. Y N/A Y Court shall N alternative Psychoeducational, FS61.125(9) determine. dispute resolu- mediate, minor time tion. changes. FS61.125 SOCIAL Neutral Address best interest Y Y Licensed 4912-N In court order N INVESTIGATOR Investigator/ of child. 61.20 Licensed 4903-Y or by stipula- Evaluator tion. FS61.20(1) EVALUATION Neutral APA, Y Y Maybe. In court order N OF MINOR Investigator/ 64B19.18.007, 64B4- Rule 12.363(a)(1) 61.20/12.363 Process to ask or stipulation. CHILD1 Evaluator 7.006 for Rule 12.363e Considered a Foren- second opinion. sic Evaluation. Board will investigate. Fees in 61.122. fall 2014 COMMENTATOR 29

Dr. Day is the co-editor of the book, Endnotes 6 Child Custody Consulting Task Force, Men- Munchausen By Proxy Syndrome: 1 Irreconcilable Conflict Between Therapeutic tal Health Consultants, and Child Custody and Forensic Roles. Professional Psychology: Evaluations, A Discussion Paper, Family Court Misunderstood Child Abuse. Her Research and Practice, 28, 50-57. Review, Vol. 49, Number 4, October, 2011, 723- most recent publications, Munchau- 2 Heltzel, T. Compatibility of Therapeutic 736. sen by Proxy Syndrome and Child and Forensic Roles. Professional Psychology: 7 Caban v. State, 9So.3D 50, 53-54 (Florida Research and Practice (2007). Vol. 38, Number Fifth DCA, 2009) and Carver v. Orange County, Custody Evaluations are Essential 2, 122-128. 444 So.2D 452-454 (Florida Fourth DCA, 1983). appear in the Journal of Forensic 3 Florida Statute 61.125. 8 Network Publications, Inc. v. B. Jorkman, Psychology Practice. 4 Florida Statute 61.403. 756 So.2D 1028, 1031 (Florida Fifth DCA, 5 Chapter 64B19-18.007(e), 1-5. 1983).

ACCESS CONFIDENTIALITY* TO PRESENT AT SPECIALIZED PSYCHOLOGICAL EVALUATE RECORDS HEARING TRAINING TESTING MENTAL HEALTH GAL Y Y Y Y Can recommend to the N 61.404 Specify in Mandatory. 61.401 court. Can investigate. order. AAL Y By Y N Can request to the court. N Florida Bar Rules for subpoena. Unless com- Attorney pletely, unre- Representation lated matter. Rules of Professional Conduct 4-1.4 PC Y By release N** Y N Inquiry/Recommend FS61.125(7) of parties. FS61.125(4)(a)-5 to court. SOCIAL N By order or By subpoena. Y Based on licensing and Y INVESTIGATOR release. professional judgment. If qualified. FS61.20(2) EVALUATION N By order or By subpoena. Y Based on licensing and Y OF MINOR release. professional judgment. If qualified. CHILD1 *All professionals, with the exception of AAL’s, are mandatory reporters of suspected child abuse and neglect. **Exception: (a) Can notify court of emergency, and/or (b) Order of Protection or arrest for Domestic Violence under Chapter 741. Deborah O. Day, Psy.D. Kyle J. Goodwin, Psy.D.

OFFER EVALUATE INTERVIEW INTERIM OFFER TIMESHARING RECOMMENDATIONS SUBSTANCE ABUSE CHILD RECOMMENDATIONS RECOMMENDATIONS OTHER ISSUES B.I. GAL N Y Y Can have limited appoint- Y Can investigate. ment. AAL N Y Represents child’s Argues for child’s wishesd. Argues for child’s wishes. wishes. PC Inquiry/Recommend Y Y Y Y to court. SOCIAL Y Y N Y Y INVESTIGATOR If qualified. AFCC*** EVALUATION OF Y Y N Y Y MINOR CHILD1 If qualified. 12.363(4) May AFCC require interviews to be recorded. ***Association of Family and Conciliation Courts (AFCC) a. Franklin & Crisuolo/Lienor v. Etter 924 So. 2nd 947 (Fla 3rd DCA 2003). b Scaringe v. Herrick, 711 So. 2nd 204 (Fla 2nd DCA 1998). c. Florida Rules of Professional Conduct (4-1.2). Objectives and Scope of Representation. d. Florida Rules of Professional Conduct (4-1.14). Client under Disability. Duty to explain. Client cannot adequately act in client’s own best interest. Ask for a Guardian-ad-Litem (GAL). e. Family Law Rules of Procedure, Rule 12.363. 1. Appointment of mental health expert or other expert. 2. Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling. 3. Licensed Psychologist. Deborah O. Day, Psy.D. Kyle J. Goodwin, Psy.D. 30 COMMENTATOR fall 2014 Typical and Atypical Sexual Behavior of Young Children Theodore Wasserman PhD., Boca Raton; Lori Wasserman PhD., Boca Raton; Sheila Furr PhD., Boca Raton

Child sexual abuse allegations aris- and see if they are valid and reliable target behavior’s occurrence in the ing during custody conflicts are com- markers of abuse. To accomplish this typically developing population; how plicated and difficult to resolve. Fam- task, we include a quiz, and give you often this behavior occurs in the gen- ily law attorneys who practice long the opportunity to try to determine eral population of children for whom enough will eventually be involved in which of the indicators listed below no abuse has been experienced. To ob- a case where one of the parties alleges can be reliably used to make a de- tain a base rate regarding behavioral sexual misconduct with a child. These termination whether you should be markers of child abuse one must first cases are fraught with moral and concerned that sexual abuse may distinguish age-appropriate and nor- ethical overtones. These cases are ex- have occurred. We also provided the mal sexual behaviors from behaviors acerbated by the fact that mandatory answers and some additional infor- that are developmentally inappropri- child abuse reporting laws mean that mation. ate and/or abusive (sexual behavior if a parent mentions suspicions to a All the answers provided are drawn problems). health professional, the suspected from several population surveys, in- These base rate studies have been abuse will have to be reported to the cluding a study conducted for the done and are available for inspec- police and/or child protection services American Academy of Pediatrics tion. The studies indicate that sexual (Wakefield & Underwager, 2004). (American Academy of Pediatrics, behaviors are quite common in chil- Most professionals believe that the 2009). The more rarely or atypically dren aged 2-5. Overall, more than highest percentage of false allega- a behavior manifests itself in the 50% of children will engage in some tions occur in divorce litigation. There general population, the more likely it type of sexual behavior before their is considerable disagreement over is that the behavior is an indicator of 13th birthday (Kellogg & Committee just how many of these allegations trouble. While in a non-abused popu- on Child Abuse and Neglect, 2009). are false (Wakefield & Underwager, lation there were no behaviors that Clearly, given the percentages, not 2004) because a false accusation does occurred with a base rate of 0, there all sexual behavior that occurs is not always represent a deliberate lie were behaviors whose occurrence was either atypical or one hundred per- created for the purpose of obtaining so atypical the behavior should be cent indicative of an abuse that has the majority or the entirety of time considered a cause for concern. occurred. The frequencies of typi- sharing. Other plausible explana- The following information is useful cally occurring sexual behavior does tions exist. background to understand the scope not vary much between girls and Media coverage of sexual abuse, of this article. Empirical research has boys. Kellogg et al also report that widespread publication and public indicated very mixed results which do parents play a crucial role in the in- awareness campaigns of so-called not validate the use of psychological cidence or reported sexual behavior. “behavioral indicators,” and expan- tests as a determiner of whether or The researchers indicate that level of sion of child sexual abuse preven- not a child has been abused (Water- maternal education is an important tion programs can result in parents man & Lusk, 1993). Stronger differ- variable in the recognition of sexual becoming hypersensitive to the pos- ences between sexually abused and behavior in children in that “moth- sibility of abuse. In a difficult and non-abused children generally are ers who are more educated and who confrontational time sharing conflict, found on measures completed by par- acknowledge that sexual behaviors a parent might be primed to reach ents than on measures administered in children can be normal tend to premature conclusions. Any suspi- directly to children. report more sexual behaviors in their cious circumstances may lead to sug- To make a determination whether children when compared with moth- gestive questioning and inadvertent abuse has occurred, clinicians (and ers with fewer years of education and reinforcement of a young child con- physicians) must rely on base rate. A less acceptance of these behaviors” firming these concerns. Statements base rate is a statistic that indicates (pg.992). about abuse may be unknowingly how frequently a behavior occurs Sexual behavior and interest varies shaped and developed. within a targeted population. In the with age for young children. Studies We think it is valuable to review instance of sexual abuse, the expert have shown that 2-year-old children some of these behavioral indicators clinician relies on base rates of the have demonstrated (as compared fall 2014 COMMENTATOR 31 to 10-12 year olds) to be relatively been caught role playing sexual be- Jones is upset and suspects some- sexual and children become increas- havior both at her house and at her thing is going on at his estranged ingly sexual up to age 5, when the parents’ house when the parents are wife’s house. Spike has chosen to mean activity of behavior drops for babysitting. remain silent on the issue. both genders. Another drop occurs Rating (1-4)______Rating (1-4) ______after age 9, although 11-year-old girls 3. Mr. Reginald picked up his son 8. Mrs. Smith reports that her 4 show a slight rise in sexual behavior, Bobby, aged four, from the preschool year old daughter keeps trying to put primarily coming from an increased his soon to be ex-spouse has enrolled her tongue in her mouth when she interest in the opposite sex (Fried- him in. Mr. Reginald reports that kisses her goodnight. She is upset and rich, Fisher, Broughton, Houston, & the teacher pulled him aside and asks you what you think. Shafran, 1998) reported that Bobby has been expos- Rating (1-4) ______The answers to the examples in ing himself to the other children in our quiz correspond to the data on preschool and that this behavior has Answers. the typical development of sexual just started. For questions 1, 3, 4, the correct behavior in young children summa- Rating (1-4) ______rized in a review article by Friedrich, rating is usually ‘1’. Several studies Fisher, Broughton, Houston, & Shaf- 4. Mr. Reginald also indicates that of children aged 2 to 5 years without ran, (1998) that was used to form the since his suspicion has been aroused a history of abuse (determined by basis of the American Academy of by the above mentioned report from parental screening), indicated that Pediatrics (2009) study of the devel- the preschool, he remembers that typically occurring sexual activities opment of sexual behavior in young ever since mommy got a new boy- reported by caregivers include touch- children. It is important to remember friend that stays over, Bobby has ing their genitals at home and in the examples are general representa- been sneaking into the bathroom and public, masturbating, showing their tions of specific behaviors assessed peeking at him when he showers. genitals to others, standing too close, for frequency in the study. Rating (1-4) ______and trying to look at nude people. To take the quiz, consider the de- 5. Mrs. Green reports that since she The frequency of occurrence does not scription of each behavior. Assign each has begun letting Mary Jane sleep significantly vary between boys and behavioral description a rank from the over at her estranged husband’s new girls (Friedrich, Fisher, Broughton, following scale choices which reflect apartment the preschool has reported Houston, & Shafran, 1998). For ex- your general level of concern, (1-4): that Mary Jane, aged three, has been ample, 25% of male children aged 2-5 who have not been sexually abused 1. Normal common behaviors found rubbing up against the other children touch themselves in public and al- with enough base rate in the general in class in a sexually suggestive man- most 17% self-stimulate. The base population to reduce concern. ner. Rating (1-4)______rates for girls are similar. More than 2. Less common but never the less 40% of children aged 2-5 touch their typically occurring within a specific 6. A rather embarrassed Mrs. Blue genitalia at home. age cohort. tells you that her daughter, aged 40 Children typically show a fascina- 3. Uncommon behaviors for young months, has been inserting objects tion regarding what adults look like children to engage in. into herself even though she has told when they are unclothed. More than 4. Rarely normal behavior hardly her that it was wrong. She is worried 20% of typically developing children ever seen in the typically developing that her almost ex-spouse might be of either sex will demonstrate an in- population. doing something during time sharing. terest in an adult that is undressing. Mrs. Blue tells you that her daughter Finally more that 9% of young chil- Here is the first situation; Assume stops as soon as she tells her to and dren under age 5 show their “private all the situations presented occur plays with appropriate toys. parts” to other children either when as part of a contested divorce. The Rating (1-4) ______on “play dates” or at preschool. answers are provided below. 6. Later that day (you are having a Questions 5 and 8 should have been 1. Mrs. Jones, a college educated really bad day), Mrs. Green, your new rated with a ‘2’. Data suggests that mother reports that her daughter client tells you that her four year old more than 3% of female children aged Chloe, aged five, has been self-stim- daughter is also inserting things into 2-5 suggestively rub against other ulating, she hesitates, then uses the herself and will not stop even though children. The percentages for boys are word masturbates, both in public and Mrs. Green yells at her to do so. a bit higher. Similarly, 4% of typically private. Rating (1-4) ______developing children ages 2-5 attempt Rating (1-4) ______7. Mr. Jones tells you that his son to put their tongue inside the adult’s 2. Mrs. Smith reports that her ten Junior, aged three, is fond of playing mouth when kissing. This same be- year old and her four year old have with his dog’s, Spike, genitals. Mr. continued, next page 32 COMMENTATOR fall 2014

one’s own sexual parts when at home. abused child and to, therefore, help Typical and Atypical Sexual The base rates for these behaviors are guide discussions with clients. Behavior of Young Children so high as to preclude a meaningful from preceding page distinction between an abused child References: and a typically developing child. American Academy of Pediatrics. The occurrence of several high base (2009). Preventing Sexual Violence An havior would be considered unusual rate behaviors does not increase the Educational Toolkit for Health Care for a child older than six. probability that sexual abuse has Professionals. Retrieved from Ameri- Question 7 should have been an- occurred. The statistical possibilities can Academy of Pediatrics: http:// swered with a ‘3’. This question is a for each behavior are separate and in www2.aap.org/pubserv/psvpreview/ bit of a trick because if junior were general, multiple criterion prediction pages/behaviorchart.html older than five, the correct answer equations do not exist. On the other Friedrich, W., Fisher, J., Broughton, would be a ‘4’. Developmental data hand, the significance of the presence D., Houston, M., & Shafran, C. (1998 indicates that about 3% of typically of one very low base rate behavior 101(4)). Normative sexual behavior is not diminished if other high base developing children aged 2-5 dem- in children: a contemporary sample. onstrate behavior similar to that in rate behaviors are also in the child’s Pediatrics. Pediatrics, e9. which junior engaged. After age five, repertoire. Kellogg, N., & Committee, o. C. the percentages drop off rather dra- To conclude, the concerning behav- (2009). Clinical Report—The Evalua- matically. iors should be assessed from two per- tion of Sexual Behaviors in Children. Questions 2 and 6 should have re- spectives. The first involves assessing Pediatrics, 992-998. ceived a rating of ‘4’. Placing or in- the concerning behavior from the Wakefield, H., & Underwager, R. serting objects into one’s vagina or perspective of the base rate of the (2004). Sexual Abuse Allegations in rectum occurs very infrequently in behavior in a typically developing Divorce and Custody Disputes. Re- the typically developing population population. The second involves as- trieved from Institute for Psycho- of children aged 0-5. Less than half sessing the behavior utilizing the logical Therapies . : http://www.ipt- a percent place objects without any perspective of frequency, intensity, forensics.com/library/saadcd.htm provocation. Similarly, role playing and duration. Waterman, J., & Lusk, R. (1993). sexually explicit behavior happens Things become problematic when Psychological testing in evaluation of very infrequently within the general the occurrence of any one behavior child sexual abuse. Child Abuse and population, occurring at a base rate is too frequent, too intense, and lasts Neglect Jan-Feb;17(1), 145-159. of less than 1 percent. too long. One instance of a behavior, Which behaviors should elicit con- especially one that is open to inter- Sheila Cohen cern? The following behaviors occur pretation, is not necessarily indica- Furr, Ph.D., with base rates below 1% for children tive of anything problematical, while A.B.N., has been aged 2-5; Pretending that toys are repeated expression of a behavior in clinical prac- having sexual intercourse, making might be cause for concern. For ex- tice since 1978 sexually explicit sounds placing or ample, a light pretend peck on the working with chil- inserting objects into the vagina or check between dolls with whom the dren and families. rectum, the child placing their mouth child is playing is not the same as the She is a Licensed on the sexual parts of another, asking daily role plays of extended kissing Psychologist and others for sexually explicit sexual and fondling sessions with the same S. FURR is Board-Certified acts or the child physically attempt- dolls. The family attorney must also in Clinical Neu- ing to have intercourse. A base rate be very aware of the educational, cul- ropsychology by the American Board below 1% suggests that these behav- tural, and religious issues that serve of Professional Neuropsychology. She iors are almost never seen in typi- to construct a person’s concern about has extensive experience in evaluating cally developing children who have their child’s sexual behavior. and counseling families in distress not experienced sexual abuse. Their Family attorneys, as are all attor- before, during and after the divorce appearance should be cause for con- neys in the State of Florida, are ex- process. siderable concern. cluded from the mandated reporting Dr. Furr is certified by the Supreme At the opposite end of the spectrum, requirement under Florida 39.201, Court of Florida as a Family Me- commonly occurring sexual behavior which only requires judges to report. diator, is qualified as a Parenting in typically developing young chil- The information in this article is de- Coordinator under statutory guide- dren include; Dressing like the op- signed to inform family law attorneys lines, and is trained as a Guardian posite sex, touching breasts, hugging of the likelihood that any one behav- Ad Litem and as a mental health or kissing strangers and exploring ior may or may not be indicative of an neutral in collaborative law. She is fall 2014 COMMENTATOR 33 involved in the Family Law Section of for children with special needs, emo- in New York. Dr. Wasserman is Board the Florida Bar as Chair of the Litiga- tional and educational concerns. Dr. Certified in Pediatric Neuropsychology tion Support Committee, a member of Wasserman has also had extensive by the American Board of Pediatric the Ad Hoc Committee on Guardian treatment experience in working Neuropsychology and Board Certified Ad Litem and the Adoption, Paternity, with marital couples, families in in Clinical Psychology by the Ameri- Dependency and Children’s Issues the process of divorce and families can Board of Professional Psychology. Committee. following a divorce. Dr. Wasserman has written numerous articles and book chapters on clinical Lori Drucker issues related to family law, educa- Wasserman Theodore tion, learning, autism, attention deficit Ph.D., A.B.Pd.N. Wasserman, has been in clini- Ph.D, A.B.P.P., disorder and learning disorders. Dr cal practice since A.B.Pd.N. received Wasserman has given invited lectures, 1982. Dr. Wasser- a BA in psychol- and provided consultation regarding man is a licensed ogy from George pediatric neuropsychology, learning psychologist and Washington Uni- methodology and reading throughout is Board Certi- versity. He went on the United States and internationally. L. wasserman fied in Pediatric to receive his mas- Dr. Wasserman he is a member of the Neuropsychology T. wasserman ter’s degree and his American Academy of Clinical Psy- by the American Board of Pediat- Doctoral degree in chology and the American Academy ric Neuropsychology. She is also a school/clinical psychology from Hof- of Pediatric Neuropsychology. Dr. Was- certified School Psychologist. She stra University. He received specialty serman, a Licensed Psychologist in the has extensive experience in the as- training in pediatric neuropsychology State of Florida is in private practice sessment, diagnosis and planning at North Shore University Hospital in Boca Raton Florida.

FloridaBarCLE Audio CD / Video DVD products available 28 Practice Areas • Over 200 Programs

For a complete list of CD’s/DVD’s, visit www.floridabar.org/CLE. Click “Order Online” and search by City, Course Number, Sponsor or Title. CD’s and DVD’s come with Electronic Course Materials unless otherwise indicated.

The Family Law Practitioner’s Guide to To Tax Effect or Not: Successful Planning, Does the Imminent Taking, and Using Understanding Corporate Sale Doctrine Depositions Returns and the Related Still Exist? #1787 Financial Issues Impacting A Family Law Case #1781 #1774 34 COMMENTATOR fall 2014

In Recognition of Marital and Family Equality: The Family Law Section’s Brief Amicus Curiae in Shaw Christopher W. Rumbold, Esquire, Boca Raton and Lissette Gonzalez, Esquire, Coral Gables

Introduction Factual and Procedural R. Rahall and Ellen Ware in Case No.: 2D14-2384. On June 17, 2014, Appel- Florida, like many states, first en- History – Trial Court & lant moved the Second District for acted statutory same-sex marriage Appellate Court direct review by the Florida Supreme bans in 1997. Florida Statutes Section Mariama and Keiba Shaw validly Court and designation thereby that 741.212, enacted in 1997, provides, in married in 2010 in the Commonwealth this was a matter of great public im- pertinent part, that same-sex marriag- of Massachusetts and were legal, eco- portance. The Second District initially es are not recognized in Florida even if nomic, and emotional partners in the declined the invitation. Thereafter, on and when validly entered into in a for- fullest sense of the terms. The spouses August 27, 2014, it noted additional later relocated to Florida and, due to eign jurisdiction. Then, in the wake of then-pending appeals, reversed it- marital difficulties, Mariama filed her the Hawaiian Supreme Court decisions self and ruled en banc that the Shaw 2014 petition (followed by her amend- in Baehr v. Lewin, 852 P.2d 44 (Haw. matter should receive direct Florida ed petition) for dissolution of mar- 1993), Baehr v. Miike, 910 P.2d 112 Supreme Court review, pursuant to riage. The parties satisfied Florida’s (Haw. 1996), and Baehr v. Miike, WL Article V, Section 3(b)(5) of the Florida residency requirement and all other 35643448 (December 9, 1999 Haw.), Constitution, noting that, “the issue conditions necessary and precedent it balloted and then buttressed the was whether Florida’s ban on same- to dissolve their marriage. Further, statutory bans with a constitutional sex marriage and the prohibition on the parties resolved all rights, duties, referendum and amendment in 2008. recognizing such marriages unconsti- and obligations emanating from their Article 1, Section 27 of the Florida Con- tutionally limits various constitutional marital relationship by way of a Collab- stitution, enacted in 2008 and passing guarantees including full faith and orative Marital Settlement Agreement with 62.1 percent of the vote, provides, credit, access to the courts, equal pro- and, therefore, they sought entry of a in pertinent part, that marriage is tection, and the right to travel.” On that final judgment dissolving the bonds of strictly a union between one man and same date, and under newly assigned their marriage. In its May 2014 rul- one woman. Unlike Florida, nineteen case number: SC14-1664, the matter ing, and citing Florida’s statutory and states and the District of Columbia was deemed a “high profile” case by constitutional same-sex marriage bans, presently recognize and permit same- the Florida Supreme Court. However, the trial court held, “there is no valid sex marriages – eight by court order, on September 5, 2014, the Florida Su- marriage to be dissolved under the eight by the state legislature, and three preme Court declined to accept ju- laws of Florida, and this action must by popular vote. Nationwide, and with risdiction and remanded the matter be dismissed. The court is without ju- only one exception following the United for further proceedings in the Second risdiction to dissolve that which does States Supreme Court’s landmark rul- District. On September 24, 2014, Ap- not exist under the law.” Accordingly, pellant’s counsel requested oral argu- ing in United States v. Windsor, 133 while satisfying Florida’s residency ment before the Second District. S.Ct. 2675 (2013), same-sex marriage requirements but not the residency bans in statutory and constitutional requirements of any other state, the forms challenged in state and federal spouses faced a Morton’s Fork – remain The Family Law Section – courts, under federal and state laws, married (although unrecognized in Ad Hoc to Amicus have failed to survive any degree of ju- Florida and, therefore, unsusceptible In January 2014, the then-Chair of dicial scrutiny. It is within this context to dissolution) or move to another state the Family Law Section, Elisha Roy, that the matter of Mariama Monique and establish residency for dissolution created an Ad Hoc Committee of the Changamire Shaw v. Keiba Lynn Shaw purposes. Instead, the spouses choose Legislation Committee, chaired by was filed in the Circuit Court of the to challenge Florida’s marriage ban in Christopher W. Rumbold and charged Thirteenth Judicial Circuit in Hills- its appellate courts. with drafting a legislative standing borough County under Case Number: On May 16, 2014, A Notice of Appeal position regarding same-sex marriage. 14-DR-0666. was filed by Appellant’s counsel, Brett The result was a legislative standing fall 2014 COMMENTATOR 35 position that the Family Law Section Other Pending Florida furtherance of this laudable directive, supports legislation in favor of marital Appeals the Family Law Section has recog- and family equality regardless of sex, During the pendency of the Shaw nized and concurred with the Florida gender, or sexual orientation. In June case, additional challenges to Florida’s Supreme Court’s evolving and expand- 2014, the Executive Council of the Fam- marriage ban laws have been brought ing definition of family as affirmed in ily Law Section approved the standing in courts as geographically, politically D.M.T. v. T.M.H., 129 So.3d 320 (Fla. position and, upon motion of the Am- and socially disparate as Key West 2013). In filing its brief in Shaw, and its icus Curiae Committee, the filing of and Tallahassee. First, pending in the forthcoming brief in Pareto and Hunts- an amicus brief in the matter of Shaw Third District Court of Appeal, under man (pending approval by the Board of v. Shaw. Cynthia L. Greene, Lissette consolidated cased numbers 3D14- Governors of the Florida Bar), the Fam- Gonzalez (Greene Smith & Associates, 1816 and 3D14-1783, respectively, are P.A., Miami, Florida) and Christopher ily Law Section has again evidenced its trial court rulings declaring Florida’s W. Rumbold (Gladstone & Weissman, commitment to all of Florida’s fami- same-sex marriage bans unconstitu- P.A., Boca Raton, Florida) were charged lies. While it remains to be seen how tional as applied to couples who were with the drafting of said brief on be- the various District Courts of Appeal, denied marriage licenses in Miami half of the Family Law Section and the Florida Supreme Court, and ul- Dade County, Pareto v. Ruvin, 21 Fla. the Florida Chapter of the American timately, the United States Supreme L. Weekly Supp. 899a (Fla. 11th Cir. Ct. Academy of Matrimonial Lawyers. On Court will resolve the issue of marital July 25, 2014) and in Monroe County, August 4, 2014, the Motion for Leave to recognition and the enfranchisement Huntsman v. Heavilin, 21 Fla. L. Week- File Brief Amicus Curiae was filed; and, of same-sex couples with respect to ly Supp. 916a (Fla. 16th Cir. Ct. July on September 16, 2014, with the review 17, 2014). On September 24, 2014, the the right to marry, history reminds us, and approval of the Family Law Sec- Florida Chapter of the American Acad- as simply and unequivocally stated tion’s Chairman, Norberto Katz, and emy of Matrimonial Lawyers, again via in Youngberg v. Romeo, 457 U.S. 307, the American Academy of Matrimonial Cynthia L. Greene, Lissette Gonzalez 315–16 (1982), that “a fundamental Lawyers, Florida Chapter’s Chairman and Christopher W. Rumbold, filed its right once recognized properly belongs Jorge Cestero, and with the consent of Motion for Leave to File Brief Amicus to everyone.” the Florida Bar Board of Governors, Curiae in the matter. Second, pend- the brief was filed. ing within the purview of the Fourth Christopher W. The brief addresses in detail three District Court of Appeal is the matter fundamental rights—access to the Rumbold practices of In re Marriage of Heather Brassner, courts, marriage and marital recog- exclusively marital 21 Fla. L. Weekly Supp. 920a (Fla. nition, and equal protection under and family law and 17th Cir. Ct. August 4, 2014) where the law. The brief also addresses, suc- is a partner at Glad- the Broward County Circuit Court is- cinctly, three additional related and stone & Weissman, sued an order holding Florida’s same- implicated fundamental rights—pri- P.A. in Boca Raton. sex marriage bans unconstitutional. vacy, association, and travel. The brief He presently serves Finally, pending in the United States draws on and includes the tsunami of the Family Law Sec- District Court for the Northern District C. RUMBOLD historic and recent, federal and state tion as a member of opinions that, utilizing differing legal of Florida in Tallahassee is the matter of Brenner v. Scott, Case No.:4:14cv107- Executive Council and as Co-Chair theories and differing levels of judicial of the Legislative Committee. He is a scrutiny, strike down, invalidate and RH/CAS, 999 F.Supp.2d 1278 (N.D. Fla. Aug. 21, 2014) where the federal court Supreme Court Certified family law deem unconstitutional state laws ma- mediator and has been named in Super terially and substantively similar to struck down Florida’s laws banning Lawyers 2011-2014. those of the State of Florida. Central to same-sex marriage noting that “few the brief is recognition that marriage rights are more fundamental” than Lissette Gonzalez, is “the most important relation in life,” the right to marry and that by simply Maynard v. Hill, 125 U.S. 190 (1888), enfranchising same-sex couples, a new Esq. is an associate and that laws that render couples “le- fundamental right is not created but at Greene Smith gal strangers, stripping them of the instead a historic fundamental right & Associates, P.A. choice to marry or remain married in is further protected. where she handles the state they call home” should and do complex family and fail to survive any level of judicial scru- Conclusion marital law appeals tiny. Latta v. Otter, No. 1:13-cv-00482 The Family Law Section of the Flor- alongside the firm’s CWD, 2014 WL 1909999 (D. Idaho May ida Bar is charged with protecting L. gonzalez founding partner, 13, 2014). and promoting Florida’s families. In Cynthia Greene. 36 COMMENTATOR fall 2014

THE FAMILY LAW SECTION IN STATE RETREAT DECEMBER 4-7, 2014

The Ritz-Carlton – Amelia Island 4750 Amelia Island Parkway Amelia Island, FL 32034 (800) 241-3333

Course No.: 1405996N

Schedule

Thursday, December 4, 2014

Welcome Reception 5:30 p.m. - 6:30 p.m. – Sponsored By –

Friday, December 5, 2014 FOGEL RUBIN Breakfast & Executive Council Meeting 8:00 a.m. - 9:00 a.m. – Sponsored By – FOGEL marital and family law Salt Cooking School & Lunch 9:00 a.m. - 1:00 p.m.

Group Dinner at Salt 5:30 p.m.

Saturday, December 6, 2014 FOGEL RUBIN Breakfast 8:00 a.m. - 9:00 a.m. – Sponsored By – FOGEL marital and family law CLE: 9:00 a.m. - 11:00 a.m. How To Grow Your Practice And Enhance Client Services In A Changing Economy Presented by Glenn Gutek, Atticus

CLE CREDITS: General: 2.0 hours Ethics 0.5 hours Glenn Gutek

Good-bye Cocktail Reception 5:30 p.m. - 6:30 p.m.

Sunday, December 7, 2014 Depart fall 2014 COMMENTATOR 37

Family Law Section IN-STATE RETREAT December 4 – 7, 2014 • The Ritz-Carlton • Amelia Island, FL

Registration Form

TO REGISTER BY MAIL, SEND THIS FORM TO: The Florida Bar, Order Entry Department, 651 E. Jefferson Street, Tallahassee, FL 32399-2300 with a check in the appropriate amount payable to The Florida Bar or credit card information filled in below. If you have questions, call 850/561-5831.

Name ______Florida Bar # ______

Address ______

City/State/Zip ______Phone # ______

E-mail ______DP: Course No. 1405996N

REFUND POLICY: A $25 service fee applies to all requests for refunds. Requests must be in writing and postmarked on or before Friday, November 7, 2014.

REGISTRATION ITEM # QUANTITY COST TOTAL COST  Section Member 8100127 ______$325 $______

 Non-Section Member 8100129 ______$380 $______

 Guest of Section Member 8100128 ______$250 $______

TOTAL ENCLOSED $______

METHOD OF PAYMENT (CHECK ONE):

 Check enclosed made payable to The Florida Bar **SEND THIS FORM TO: The Florida Bar, Order Entry Department, 651 E. Jefferson St., Tallahassee, FL 32399-2300**  Credit Card (Fax to 850/561-9413.)  MASTERCARD  VISA  DISCOVER  AMEX Exp. Date: ____/____ (MO./YR.)

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 Please check here if you have a disability that may require special attention or services. To ensure availability of appropriate accommodations, attach a general description of your needs. We will contact you for further coordination. 38 COMMENTATOR fall 2014

The Florida Bar Continuing Legal Education Committee and the Family Law Section present Collaborative Practice: Staying Out of the Briar Patch–Identifying and Dealing with Expected and Unexpected Issues in • Live Audio Webcast the Collaborative Process • Audio CD

COURSE CLASSIFICATION: INTERMEDIATE LEVEL Live Audio Webcast Presentation: Wednesday, December 10, 2014 12:00 p.m. – 2:00 p.m. E.T. Course No. 1816R

In this program, Attorney Nancy Harris will be dealing with the issues of difficult clients and obstacles that attorneys may confront during a collaborative divorce process. Lana Stern, Ph.D., will provide and demonstrate insight as to how the neutral mental health professional can be used to assist the parties and attorneys in communicating, keeping the parties engaged in the collaborative process when matters get heated, and understanding the psychological dynamics that may assist or detract from reaching settlement in the case. Finally, Adam T. Magill, MBA, CBA, CVA, MAFF will provide insights as to how to best use a neutral financial professional to deal with contradictory financial claims between the parties and in proposing creative options for people whose goals may be rather unrealistic or far apart. Regardless of your experience or training in collabora- tive law, this course will provide insights and tools that can be used in both collaborative and non-collaborative divorce cases.

11:50 a.m. – 12:00 p.m. Connection Time AUDIO WEBCAST 12:00 p.m. – 12:05 p.m. As an audio webcast attendee, you will listen to the Welcome and Introduction of Speakers program over the Internet. Registrants will receive audio Cash Eaton, Esquire, West Palm Beach, Program Co-Chair webcast connection instructions prior to the scheduled course date via email. If you do not receive the email 12:05 p.m. – 12:45 p.m. 2 days prior to the event, contact InReach Customer The Difficult Client and Other Obstacles Along the Path Service at 877-880-1335. Nancy Harris, Esquire, Tampa 12:45 p.m. – 1:15 p.m. How to Keep the Collaborators Collaborating: Or How CLE CREDITS to Keep the Players Engaged in the Process Lana Stern, Ph.D., Miami CLER PROGRAM 1:15 p.m. – 1:45 p.m. (Max. Credit: 2.0 hours) Creating Financial Options Out of Uncertainty and General: 2.0 hours Skepticism Ethics: 0.0 hours Adam T. Magill, MBA, CBA, CVA, MAFF, Orlando CERTIFICATION PROGRAM 1:45 p.m. – 2:00 p.m. (Max. Credit: 1.5 hours) Question and Answer Session Marital and Family Law: 1.5 hours Charles D. Jamieson, Esquire, West Palm Beach, Program Co-Chair

FAMILY LAW SECTION Norberto Katz, Maitland — Chair Maria C. Gonzalez, Weston — Chair-Elect FACULTY & STEERING COMMITTEE Luis E. Insignares, Fort Myers — CLE Chair Cash Eaton, Esquire, West Palm Beach — Program Co-Chair CLE COMMITTEE Charles D. Jamieson, Esquire, West Palm Beach — Program Co-Chair Michael Bloom, Hollywood, Chair Terry L. Hill, Director, Programs Division

TO REGISTER ON-LINE http://tinyurl.com/FloridaBarCLE1816R fall 2014 COMMENTATOR 39

REFUND POLICY: A $25 service fee applies to all requests for refunds. Requests must be in writing and postmarked no later than two business days following the live course presentation or receipt of product. Registration fees are non- transferrable, unless transferred to a colleague registering at the same price paid.

Register me for the “Collaborative Practice: Staying Out of the Briar Patch– Identifying and Dealing with Expected and Unexpected Issues in the Collaborative Process” Audio Webcast Seminar AUDIO WEBCAST: (350) WEDNESDAY, DECEMBER 10, 2014 – 12:00 P.M - 2:00 P.M. E.T.

TO REGISTER, FOLLOW THE LINK BELOW OR TO ORDER AUDIO CD OR COURSE BOOK BY MAIL, SEND THIS FORM TO: The Florida Bar, Order Entry Department, 651 E. Jefferson Street, Tallahassee, FL 32399-2300 with a check in the appropriate amount payable to The Florida Bar or credit card information filled in below. If you have questions, call 850/561-5831.

Name ______Florida Bar # ______

Address ______Phone: ( ) ______City/State/Zip ______E-mail* ______*E-mail address required to transmit electronic course materials and is only used for this order. DP: Course No. 1816R

ELECTRONIC COURSE MATERIAL NOTICE: Florida Bar CLE Courses feature electronic course materials for all live presentations, live webcasts, webinars, teleseminars, audio CDs and video DVDs. This searchable electronic material can be downloaded and printed and is available via e-mail several days in advance of the live presentation or thereafter for purchased products. Effective July 1, 2010. AUDIO WEBCAST REGISTRATION FEE:  Member of the Family Law Section: $125 Click Here to Register  Non-section member: $180  Full-time law college faculty or full-time law student: $90

METHOD OF PAYMENT FOR AUDIO CD (CHECK ONE):  Check enclosed made payable to The Florida Bar  Credit Card (Fax to 850/561-9413.)

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 Enclosed is my separate check in the amount of $55 to join the Family Law Section. Membership expires June 30, 2015. (Applicable to CD orders only) COURSE BOOK — AUDIO CD — ON-LINE — PUBLICATIONS Private recording of this program is not permitted. Delivery time is 4 to 6 weeks after 12/10/14. TO ORDER AUDIO CD OR COURSE BOOKS, fill out the order form above, including a street address for delivery.Please add sales tax to the price. Please include sales tax unless ordering party is tax-exempt or a nonresident of Florida. If tax exempt, include documentation with the order form.

❑ COURSE BOOK ONLY (1816M) ❑ AUDIO CD (1816C) Cost $60 plus tax (includes Electronic Course Material) (Certification/CLER credit is not awarded for the purchase of the $125 plus tax (section member) course book only.) $180 plus tax (non-section member) + TAX $_____ = TOTAL $ ______+ TAX $_____ = TOTAL $ ______

Related Florida Bar Publications can be found at http://www.lexisnexis.com/flabar/ The Florida40 COMMENTATOR Bar fall 2014 651 East Jefferson Street Tallahassee, FL 32399-2300

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