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Generally, children will not be called to testify as to matters in a family law case. Many parents have difficulty understanding why their child will not be called on to express their wishes, concerns, or input regarding the situation that greatly affects their lives. Florida Family Law Rule 12.407 precludes testimony from a child as a witness in custody related cases without a prior order made by the Court. To obtain an order allowing for the testimony of a child to be considered the parent requesting the testimony must file a Motion for Child Testimony with the court. The court will give consideration to the motion at a hearing in which the judge will determine the appropriateness of the child’s testimony in this case by weighing a variety of considerations. The judge will focus on the child’s maturity, ability to convey their desires, the age of the child, and the ability to make a decision without the child testimony.

While these considerations may seem like common sense, many people have difficulty understanding why children are not always allowed to be present at hearings that are determinative of their future. Parents in the midst of litigation tend to get caught up in the idea of winning the litigation and furthering those interests. It may be a misguided notion that presenting the child’s testimony for consideration by the judge would be in the best interest of the party or the child. Children at times often express their desires to assist their parents in the litigation process and then the idea of the child testifying reaches the attorney for consideration. It is very important that an attorney fully evaluates the facts surrounding their client’s case and educate their client regarding this request. There are various ways in which a child’s desires can be heard or taken into consideration by the court.

Parents who desire to have their child testify in their family law case will need to file the appropriate motion and having a hearing on the matter. If a parent believes that their child may not have the appropriate maturity to take on such a task, or if they desire to have their children’s wishes expressed in a less direct manner, the more appropriate motion may be a motion for the court to appoint a guardian ad litem. A guardian ad litem is a court appointed party who is utilized as the voice of the child to the court. The guardian ad litem acts as a messenger to the court of the child’s wishes, school progress, concerns of guardians or teachers, etc. The guardian ad litem is a respected avenue used by parties to have the child’s wishes expressed to the court, while allowing the child to remain shielded from the ups and down of continuous litigation.

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divorce-300x216The Florida Statute governing child support is 61.30. This statute covers in great depth the child support laws in Florida. The statute covers the base level of financial support for each child support obligation based on the household income and also explains in great depth how child support should be calculated for an after born child. Child support is calculated by taking the combined monthly income of both parties and factoring in day care costs, health insurance costs, prior support orders in effect, and few additional factors are also considered. In the instance that a parent has an existing ordered child support obligation and then have a child subsequently born the initial child support obligation for the first child’s benefit will NOT be lowered due to the birth of the second child.

The legislature created this statute in order to prevent a child born before another from being ripped of the support that they were awarded. While the operation of this law may not always have the effect of the birth order taking precedence this is referred to the prohibition of a downward modification as a result of an after born child. The statute does not operate in terms of birth order; instead the operation is in terms of the chronological sequence of judicial orders. Therefore, if a client has a 12 year old son, and he has contributed to the support of this child without a judicial order in place, if the man then has another child and he is ordered to pay child support regarding the second born child, the court is not to consider the amount of support he voluntarily gives the 12 year old child in the initial calculation. The court can take into consideration the older child to support a downward departure from the child support calculation.

If we revisit the previous scenario and the parent was paying child support to the 12 year old in furtherance of a child support order then then second born child’s support amount would be calculated by taking the parent’s income and deducting the amount of child support already paid to the 12 year old THEN calculating the support amount. There are numerous benefits to having a child support order in effect for a parent who is receiving support. The order would solidify the support obligation, allow for a child not to have their support amount reduced by an” after born” child, and it would allow for a calculation of arrearages if support is not paid.

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Florida is a no-fault divorce state. What this means is that the Florida court judges do not need to hear testimony or be shown evidence to support that one party caused the breakdown of the marriage or that the breakdown of the marriage occurred as a result of certain indiscretions, such as adultery, in order to grant a divorce. While Florida may be a no-fault state, the courts must still find that a marriage is “irretrievably broken” or that a mental incapacity has existed for a period of three years, Florida Statutes 61.052, before a divorce will be granted. Often times parties move for the grounds of irretrievably broken to seek their divorce. While the assumption can be made that anyone who goes through the tiring divorce process must being doing so because the marriage is irretrievably broken, the court must still be presented with evidence to support the status of the marriage as broken.

Parties are often surprised to discover that even in instances where they have agreed upon the terms of their divorce, filed a petition, sought legal counsel, drafted parenting plans, taken the parenting course, and agreed upon property division the judge is still able to reserve on granting the divorce until a later date, order counseling, or if minor children are of the marriage the judge may issue an order in their best interests if the judge sees fit. The judge can order the previously mentioned results in instances when one party responds to the petition that the marriage is not irretrievably broken, or in any instances when the marriage involves minor children. While this may not be the result divorcing parties desire this allows the courts to attempt at giving the parties another opportunity to reconcile for the benefit of themselves and/or the minor children. While reconciliation may not be in the best interest for the parties and the children in all instances the reservation of this power allows for an outside party to evaluate the circumstances and in some cases save families from a path that is not in their best interests. While the court reserves this power, it should be noted that it is not very often that the court does not move forward with the divorce proceedings.

If you have found yourself recently served with a petition for divorce and you believe that your marriage can be retrieved, you must inform the court in your initial responsive pleading that you deny the marriage is irretrievably broken. Answering a petition for divorce by denying the grounds of irretrievably broken will not guarantee the court will not grant the divorce. But, it may give your family one last chance at counseling, or allow for the passage of time to allow for you and your spouse to reconcile. Contact Wood, Atter & Wolf, P.A. today to discuss your Florida divorce.

 

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Florida law allows for a court to grant various types of alimony awards. The types of alimony in Florida are lump sum, durational, temporary, rehabilitative, bridge the gap, and permanent. Naturally most people who would qualify as the recipients desire permanent alimony. But, simply desiring permanent spousal support is not alone sufficient grounds to be awarded permanent spousal support. The Florida courts consider a variety of factors prior to the entering of an alimony award. While there are a myriad of factors that contribute to the calculation of an alimony award, I typically begin my assessment of the possibility of alimony by asking my clients a few key questions.

I begin my assessment of the alimony possibility in a case by first looking at the needs of the possible recipient spouse, the ability of the obligated spouse to pay, and the length of the marriage. While permanent alimony can be granted by agreement of the parties in dissolution cases of short term, moderate term, or long term, the court tends to limit permanent alimony awards to marriages of long term. Florida marriages under seven (7) years are considered short term marriages, marriages seventeen (17) years and over are considered long term and the marriages that fall in the middle are considered either “gray area” or moderate marriages Fla. Stat. 61.08. While a marriage may fall into the moderate term may not be automatically open to the permanent alimony award, the court will consider the permanent alimony award in a moderate term marriage if the court has compelling reason to do so based on the factors used when considering an alimony award.

Permanent does not actually mean permanent. While some alimony awards are deemed non-modifiable a permanent alimony award does not always come with that level of protection. Some parties can choose to contract into a permanent non-modifiable alimony award, but if I had a client who was interested in agreeing to a permanent non-modifiable alimony award I would strongly suggest a reconsideration of that decision. Life changes, circumstances change, and those changes are often unpredictable. Due to the unpredictable nature of life the statutes allow for modifications of some alimony awards. While a permanent alimony award would secure the receiving spouse alimony until they marry, die, or cohabitate in a supportive relationship, it can also be modified in some circumstances. While that court may modify the permanent alimony award the court will take into consideration if the award was granted by a judge or entered into voluntarily by agreement by the parties. Florida case law, in some districts, supports the notion that modification of alimony that was entered into by agreement of the parties, rather than by a decision of the court, has a greater difficulty overcoming the burden of proving a substantial change in circumstances that was not contemplated at the time of the setting of the alimony.

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Parents often express a desire to modify or suspend their child support obligation. The reason for the desire often varies, I’ve heard things such as, the other parent doesn’t mind not receiving support, the child support amount is financially taxing, the child doesn’t need that much money, or that there has been a change in the financial ability to support the child. While the desire to change the child support obligation may be for any of the listed reasons or for another reason entirely, one must understand that a Florida court will grant a modification of child support in the instance that there is a substantial change in circumstances upon which a modification would be granted. It is important to realize that while many of the reasons listed above may seem like valid reasons to modify the child support obligation, most of them would be invalid reasons alone to justify a modification. The most legally sufficient example for a modification, of the examples provided, would be that there has been a change in either party’s financial ability to support the child.

Fla. Statute 61. 30 (1) (b) provides a bit of insight into what constitutes a substantial change in circumstances to warrant a modification of child support. The statute explains that “… a substantial change in circumstances upon which a modification of an existing order may be granted. However, the difference between the existing monthly obligation and the amount provided for under the guidelines shall be at least 15 percent or $50.00, whichever amount is greater, before the court may find the guidelines provide a substantial change in circumstances.” A substantial change in circumstances warranting a modification comes in various forms. However, it is essential to recalculate the child support amount based on the changed circumstances and determine if the case has validity for a modification at the outset of the case. A change in either party’s income, a change in timesharing, changes with healthcare, and retirement are all on their face changes in circumstances, but the changes must cause a shift to the child support obligation beyond 15% of the current child support award or $50.00, whichever is greater. When parties earning a higher combined monthly gross income the child support guidelines, typically, do not adjust downward or upward as easily as they do when parties have a lower combined monthly gross income. For example, for a family with a combined parental income of $20,000 if one party began receiving an additional $4,000 a month, based on a variety of other factors daycare costs, health insurance, timesharing, etc., that increase in income may not constitute a “substantial change in circumstances” to a degree of 15% of the current child support obligation. Whereas, a family with an original combined income of $6,000 a party who receives an additional $1,000 a month, is a more likely circumstance to cause the child support guidelines to shift to the degree of $50.00 or 15%, whichever is greater. The reason circumstances like this occur, is because the needs of a child, under the Child Support Guidelines, eventually reaches a cap. The cap is based on the statutory standard needs of a child. While the Child Support Guidelines offer a wonderful resource for setting minimums for child support amounts, these amounts can be deviated from based on the circumstances and following a motion by one of the parties.

If you are contemplating requesting a modification of your current Child Support award or obligation contact Autumn Warner of Wood, Atter & Wolf, P.A. help you determine if your case would support an upward or downward modification of child support.

 

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In Florida, the mere establishment of paternity does not create rights for the biological father. Fla. Stat. 742.10 provides that paternity can be established by the filing with the Clerk of Court of an affidavit of paternity signed by both parties, by submitting a notarized voluntary acknowledgment of paternity, by signing an acknowledgment of paternity in the presence of two attesting witnesses, by adjudication with the Department of Revenue, or by establishment through establishment by the judiciary. While unwed fathers have means available to establish paternity there is a secondary step necessary establish parental responsibility and timesharing. Establishing parental responsibility and timesharing opens the gate for the adjudicated father to have equal rights with the mother to make decisions regarding the child’s education, healthcare, and religious upbringing. Whereas establishing timesharing implements a schedule for which the father is entitled to spend time with the child. I have seen too many instances in which father’s believe that they have parental responsibility and timesharing rights simply because they pay child support. It is essential that the unwed father protects his rights and advocate for timesharing in a set schedule with his children.

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899402_you_have_mailThe changing times allow for a change in an approach how parents can engage, interact, and build relationships with their children. It seems as if we live in a world where many children have a cellphone, laptop, and/or tablet device capable of communication in various forms. While these items used to be considered luxury items primarily owed by working adults, these items are now becoming very prevalent in the lives of children. While there are many concerns for these pocket computes being placed in the hands of children, there are many benefits to this oversaturation of technology. The growing prevalence in the use of technology by children has allowed for a window of opportunity for parents to foster and maintain relationships, no matter where they are located.

Decades ago people would think of custody or timesharing with children to only include the moments in which the child was physically with them. But now, parenting plans can include provisions in which telephonic, audio visual, or other forms of electronic communication is ordered to occur between a parent and a child. The court will not order this in all cases. Yet, it remains important for client’s to be aware that this type of order is available to them. The court will consider the child’s best interest, first and foremost, and then go on to consider other factors, such as, the availability of the communication method to the child, previous history of abuse or drug use of a parent, additional costs to the parent’s for the child’s use of a device, and the need for any safeguards for the child related to the use of such a device.

While children are to be protected from being utilized as a messenger between the parents, this order communication allows for a direct fostering of the parent child relationship, typically, without the intervention of the other parent. It is not a necessity for a child to have their own communication device to effectuate this type of order, as they can use one of their parent’s devices. Fostering a relationship with your child is of the utmost importance, if you find yourself limited in communication with your child reach out to a local family law attorney, today.

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Florida child custody laws require certain provisions and allocations to be listed in each child custody final order. These provisions related to the upbringing of the child, they contain rights of the child, responsibility, and timesharing allocations. However, many clients reach confusion regarding the difference between timesharing and parental responsibility. Under the Florida Family Law Rules these are two separate and distinct concepts. Parental responsibility involves the parents’ involvement in the major decisions in the child’s life including health care, school, child care, etc. In Florida there are three types of parental responsibility:

1) Sole Parental Responsibility- applies when only one parent has the right to control all aspects of the child’s life;

2) Shared Parental Responsibility- occurs when the parents must jointly make decisions on all parenting decisions; or

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Florida Statutes 68.07 is Florida’s statute governing the process to effectuate a name change. The name change statute incorporates both the rules governing name changes of adults and minors. The petition for a name change of a minor requires specific information to be provided. This information includes the minor’s criminal history, money judgments, parental information, former names, marriage information, and if the minor child has any children. While this information may seem like a stretch in most situations involving minor children, it is important to know that the goal of the legislature in creating these statutes was to allow for the name changes to occur but also to protect all parents’ interest in the minor’s name and also ensure that the name change request is not made for an immoral purpose, such as evading law enforcement or avoiding obligations. A name change petition for a minor can be filed on the minor’s behalf by the minor’s mother, father, or guardian. While one parent can petition the court on their own to effectuate the name change of a minor, moving forward with a name change of a minor without the consent of the other parent can get rather sticky.

If you have the consent of the non-petitioning parent you have a rather easy road ahead regarding the name change. A notarized consent document must be filed with the court to show proof of this consent, and then the court will evaluate the petition and the circumstances of the case and move forward in the process. If you do not have consent of the non-petitioning parent you must effectuate personal service on that party with the petition for the name change. This places them on notice of the name change request. Without effectuating personal service on the non-petitioning spouse the court will most likely not hold a hearing on the request for the name change of the minor or if they do hold a hearing, not grant the petition. In instances where the location of the non-petitioning spouse is unknown there are some steps that can be taken to fulfill the notice requirement. Name changes may appear to be easy, but if the pleadings are not appropriately drafted, consent is not obtained, or the proper notice is not given to the non-petitioning parent the courts  may deny the request.

If you are considering changing the name of your child, contact Wood, Atter & Wolf, P.A. to help walk you through the process.

 

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363466_more_travel_teddies_series_n Recently in the Florida 2016 Legislative Session some new bills were passed which greatly affect the way child welfare cases under the supervision of the Department of Children and Families is handled. One of the biggest changes now requires the court to consider the child’s best interests when considering making a transfer of a child from custody to a placement with a prospective adoptive parent. Prior to this change of the bill the court was only required to evaluate the appropriateness of the placement. The change seeks to eliminate the circumstances in which a placement may be appropriate, in that the prospective adoptive parents are deemed a satisfactory caretaker, but that alone does not mean changing a child’s placement would be in their best interests.
The statute now evaluates the following factors regarding the best interests of the children: the permanency of the placement, the bond between the child and the current caregiver, the stability of the adoptive home, the importance of maintaining sibling relationships, the preferences of the child (if the child is of sufficient maturity), whether a petition to terminate the parental rights of the child’s biological family has been filed, and if the parent has any remaining rights to determine the appropriate placement of the child. If the Court finds that the adoption would be in the child’s best interests the court will transfer the custody of the child over to the prospective adoptive parents. This change to the statute may cause a large amount of the older aged department placements to remain in their current placements rather than with the prospective adopting parents. The older children who are dependents of the State will have a greater voice in determining their possible adoption. Typically with older placements they do not wish to continue to be placed in different homes, they will now be able to express that desire and a full evaluation of the interests of that child will take place, rather than just an evaluation of the placement.
This different evaluation will be completed only after a Motion to Intervene is filed by an adoption agency. The dependency system is difficult to navigate. The mere arrival of DCF on your door step will cause a number of questions to arise. It is essential that families who have children that have been placed under the care of the state understand their rights.