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Child Custody, Domestic Violence, and the Hague Convention

When a court is called upon to create a parenting plan and a time-sharing schedule, the court is required to consider the factors found in Florida Statute 61.13(3).

The best interests of the minor children involved in the proceeding should always be the paramount concern of the trial court judge.  One section which should not be overlooked by the judge is found in section 61.13(2)(c)(2).  That section creates a presumption of detriment to the minor children when the parent seeking time-sharing has been convicted of domestic battery upon the other spouse.

The operative word under this particular section of the statute is “presumption”.  A trial judge must inform the party who has been found guilty of domestic violence that it is their burden to overcome the presumption of detriment to the minor children.  Failing to overcome the burden could lead to the denial of shared parental responsibility or any time-sharing.

The case of Matura v. Griffiths discusses in detail the concept of timesharing, parenting plans, and the effect of domestic violence on timesharing and shared parental responsibility.

In the Matura case, the husband was deported to Jamaica based upon his conviction of domestic violence against his wife.  In spite of the fact that he was deported to Jamaica as a result of domestic battery, the trial judge still afforded him the opportunity to have timesharing in Jamaica with his children.

The appellate court promptly reversed the trial court, due in large part to the fact that the trial judge never advised the husband that his domestic battery convictions created the “presumption of detriment” to the minor children. This in turn would have denied him the right to have timesharing, unless he was able to rebut the presumption of “detriment to the children”.  Unfortunately the trial judge never informed the husband of his obligation to rebut the presumption.

Many people are familiar with the Hague convention, which is actually known as the Hague Convention of the Civil Aspects of International Child Abduction.  This is an international treaty among various countries who have pledged to assist in the return of minor children to their homes.

Jamaica is not a signatory or a party to the Hague convention, which would make it nearly impossible to have a child returned after having been improperly removed to a country which is not a party to the Hague convention.

A combination of domestic violence, along with threats of abduction, coupled with a non-signatory country to the Hague convention could only spell disaster, as found in the Matura case.

Extreme caution must be exercised, and all reasonable and necessary safeguards should be put in place when you are dealing with timesharing between parents residing in different countries.  This is especially true when one parent has demonstrated his or her capacity and propensity to disregard court orders regarding time-sharing and custody.

Talk to an attorney who has over 37 years of experience dealing with marital and family law issues, including familiarity with the Hague convention.  Alan R. Burton is an attorney practicing law in Boca Raton, Florida and is available to consult with you should you have any questions regarding time-sharing, divorce, or other family law related issues.  He can be reached at 954-295-9222.