Articles Posted in Child Custody

Written by: Lenorae Atter, Attorney at Law

Family_Tree_img.jpgFlorida custody battles are not always between two parents. Florida family law allows for a third party relative to petition the court for custody in certain circumstances where it is in the best interest of the child. There is a presumption that a parent should have the children, but there are circumstances that can lead to the court determining that the parent, at the time, does not have the ability to care for the children and find it necessary to change custody to a third party, such as grandparents. However, Florida does not recognize grandparents to have permanent rights to the child, unless the parent’s rights are terminated, but it can be on a temporary custody basis depending on the facts.

In a recent Florida appeals case, Slover v. Meyer, 2D10-6074 (Fla. 2nd DCA February 24, 2012), the court established the standard by which to determine the modification from custody to a third party to the parent. In this case, the Mother and Father had a child and the mother eventually died. The maternal grandmother and father actually entered into a parenting plan in Colorado and the grandmother was awarded custody of the child. Due to his history of drug abuse, the father was awarded supervised visitation for one year followed by unsupervised visitation. A step-up in visitation is common when supervised visitation is ordered because it awards the parent for participating in supervised visitation and helps to establish a better bond between the parent and child. In this case, the visitation went well and the father was in drug remission for a number of years while the child lived with the grandmother in Florida.

992546_bonding.jpgFlorida same sex marriage, adoption, parental rights, and custody questions have been plaguing the courts for a number of years. As a Jacksonville family law attorney, I have been curious about how such things will play out in the legal realm and whether the Florida lawmakers will finally give us something to use as guidelines. Finally, after the Florida Supreme Court did not hear the last adoption case, another same sex question is sitting on the courthouse steps according to a Florida Times Union article . Can a same sex couple have equal rights to a child?

The latest case to be ripe for the Florida Supreme Court on same sex couple issues is presently awaiting the word as to whether it will be on the Court’s calendar in the near future. Many Florida same sex couples have been patiently waiting for the Florida Supreme Court to tackle a number of issues, including parental rights of a same sex couple. The one ripe for a decision is a case involving two women who were in a relationship until 2006. In 2004, the couple had a child after they decided that one woman would provide her egg for in vitro fertilization and the other would carry the child to term. Thus, creating a proposed shared parental responsibility for the child born to them.

The couple subsequently separated in 2006 and the birth mother moved to Australia with the child without the knowledge and consent of the biological mother. After years of searching, the birth mother and child were located and the biological mother sued for parental right and custody of the child.

Continue reading

556896_just_the_two_of_us_2.jpgFlorida family law cases involving children, custody, time-sharing, parental responsibility, and a parenting plan can be challenging not just in the initial case, but as time goes by. When these things are fought over, the parents often loose sight of the fact that they don’t just have to raise a child while the court proceeding is going on, but until the child actually turns 18 and moves out of the house. Jacksonville and other North Florida courts try to keep the level of parental animosity to a low, but ultimately the court only has so much control over the individuals. However, one continuous arm the court and the parents have is when the parenting plan gives specific directions about speaking negatively about the other parent to the child, interfering with the child’s relationship with the other parent, or simply alienating the child from the other parent.

In most parenting plans, there is specific language regarding the relationship of the parent with the child, especially when it comes to matters of the other parent. For example, in many cases, there may be language like, “Neither parent shall disparage the other to the child, speak negatively in front of the child about the other, or hinder the other parent’s relationship with the child in anyway.” The reason this language or similar language may be in an order is because the impact on the other parent’s relationship with child may be severe damage. The parenting plan helps the parents understand what they can and cannot do, or should and should not do as parents raising a child in a divided home. When the parenting plan is placed into a final order and signed by the court, it becomes enforceable, meaning that there can be court recourse if a parent does not abide by the order.

When raising children, it is important to maintain the standard of, “the best interest of the child,” and not, “the best standard for me.” If a parent violates the parenting plan and begins to alienate the child, then action can be taken with a contempt action. In a Motion for Contempt, the court looks at the order for clarification of what should be done by both parties. Then, the court hears testimony and evidence regarding how the order has been violated by one of the parties. If there is evidence presented that shows that the child has, in fact, been exposed to negative, derogatory, or alienating words or actions by one parent against the other, then that parent may be held in contempt. If the same actions continue, then the parent being alienate may go back to court on more than one occasion to have the other parent held in contempt. Contempt is a voluntary and willful action of one party that is against the court order.

363466_more_travel_teddies_series_n.jpgIn Jacksonville, Florida and other portions of North Florida, the courts are not typically keen on a 50/50 visitation schedule in a divorce or paternity matter. Visitation and custody battles in Florida have taken a legal overhaul in the last few years by the legislature so as to help parents not fight from the very beginning. The changes have impacted how we refer to these issues of visitation and custody by referring to these topics as time-sharing and parenting plans. In a Florida divorce or paternity case, the goal is for the court, the parties, and their respective attorneys, to reach a conclusion that is in the best interest of the children. However, many parents have interpreted time-sharing language to mean that they start and end with equal visitation with the kids. However, the impact the schedule may have on the children is not necessarily in their best interest because parents have different ways of parenting, doing homework, establishing chores, and the like. So, the courts have tried to look at many factors in determining time-sharing plans, including the above listed things, the proximity of the parent to the kids’ schools, the communication between the parents, the relationship of the parents with the kids, etc.

In Florida, determining a time-sharing plan that works for the parents and the children can be a challenge. Often, parents feel that they want 50/50 time-sharing for multiple reasons, sadly, including the fact that it will reduce their child support obligation. Parents have to understand that whether the children are living in your house 50% of the time or spending 90 overnights (i.e. standard guideline time-sharing in North Florida) you are still paying for them, just the payments are different. Child support is determined by a state regulated child support calculations that factors in things like the income of both parties, which parent is paying for health insurance and daycare for the kids, etc. By looking at the incomes of the parties, the calculation actually determines what the household income for the child would be had the parents lived together. Then, based on the overall household income, the money is based on each parent’s contribution thereto. For example, if the household income would be $100,000 and each parent makes $50,000, then each parent’s pro rata share is 50% of the household income. Then, credits are given for the party making health insurance and daycare payments.

Continue reading

In a Florida family law case involving children, such as divorce, paternity, or change of custody, emotions can run rather high. Unfortunately, stress often surrounds these experiences and the consequences of the stress, if not handled properly, can lead to horrible actions by one parent. A parent who feels their world is caving in may turn to extreme acts, like abducting their child. Florida law has accepted, like most states, the the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) which rules that initial child custody determinations should be made by the child’s home state. A child’s home state is the state in which a child has lived with a parent or guardian for at least six (6) months. It also determines that if a parent, in fact takes a child, the child should be returned to the home state unless an emergency lead to the fleeing (e.g. physical abuse of the parent and/or child by the other parent).

The UCCJEA allows for protection of the parents and the child by providing for legal action to be taken if a parent were to abduct the child. In the United States, there are numbers cases of parent abduction each year and having a protection like the UCCJEA is vital to recovering the children. What it allows is for the nonoffending party to file a petition with the court for an emergency child pick-up. The petition must state the actions of the other parent and give a place where the parent and child are most likely located. Once an order is entered in the home state of the child, like Florida, then the order must be adopted by the state where the child is physically located. Once the order is adopted, it is enforceable against the parent with the child and the parent is required to return the child to the home state. If the offending parent refuses or fails to do so, then the parent may be charged with kidnapping, not to mention the impact that parent’s actions will have on any custody dispute pending in the court.

In Florida, there are many individuals that moved from other countries and as a family law attorney, I often have clients concerned that the other parent will return to his/her country with the child. If a child is taken, without consent of both parents, to a different country, then the Hague Convention on International Kidnapping and Child Custody will have to be employed. The countries that have adopted this action often work diligently at having the child returned to the United States. However, not all countries have adopted the Hague Convention, which can lead to additional jurisdictional issues. A passport for a child requires both parents to consent by signing the application; if this is a concern of yours then you should deny the child getting a passport.

1328012_agenda_4.jpgFlorida divorce and paternity cases often have a child component, which many refer to as a custody battle. Custody obviously refers to which parent will have the children after the divorce or paternity action is over and ultimately determines which parent will be responsible for paying child support. The term, “custody battle,” initiates any child action with a sense of war between two parents. In 2008, the Florida legislature changed child custody to “primary time-sharing parent,” in an effort to alleviate the idea of going to war over children and ultimately, simply phrasing the legal action so that parents understand that they are, in fact, sharing the children’s time. While the law changed in 2008, most Floridians, at least in Jacksonville where I practice divorce and family law, do not know the new term. The reason is two-fold, one reason is that like anything new, it takes time to get used to and a four year time-frame really isn’t that long after a generation grew up with the movie Kramer vs. Kramer, all revolving around a custody battle.

The change in the law is one that is designed to help parents focus on the overall outcome, the sharing of their child and not focus on who has the child more. However, even with name changes, the overall picture is still the same. When involved in a custody or time-sharing dispute in Florida, the law has not really changed as far as determining the correct parent to have majority time-sharing. The court is responsible for looking at a number of factors, including which parent is more likely to facilitate an ongoing healthy relationship with the child and the other parent, the stability of the parent, the parent’s ability to take care of the child, etc. When two parents fight over the custody or time-sharing issue, the court can actually order the parents to participate in a Custody Evaluation or Social Investigation. The social investigator actually meets with the parents and the children individually and sometimes in a parent/child session to see how the parent and child interact with one another. In addition, the social investigator may conduct a home study where she/he goes to the home of each parent to see the environment the children would live in.

Once the investigator has interviewed the parents and children, she/he may find it necessary to speak with other family members, school officials, friends, etc. to get a better understanding of the family dynamics. If there are issues of mental health or physical health issues of either parent, then the investigator may require medical records be provided so that a full evaluation can be completed. The social investigator takes all components of the investigation to reach a conclusion as to what is in the best interest of the children. While the social investigator’s opinions are helpful to a court, the court is not bound by investigator’s overall conclusion and the court must still look at all factors before determining which parent is most likely going to provide the safest, healthiest, most stable environment for the children.

Weight.jpgFlorida divorce and custody battles (e.g. time-sharing battles) often center on the parenting styles of each party, the relationship of the children with each party, and the ability to care for the children in a safe, stable environment. When these things are questioned it can lead to legal arguments that center on the children and their academics, health, social environment and the like. As a divorce and family lawyer in Jacksonville, it has come to my attention over the years that sometimes the health of the children is more than simply getting check-ups, but also receiving the proper attention to their diet, school activities, etc. When these battles ensue, often fingers are pointed for things such as neglect, abuse (emotional or physical), lack of participation in homework and the like. However, in a 2009 Time Health article, the question of obesity in children has risen as a concern in custody or time-sharing disputes given the rise in the epidemic over the years.

The question, according to the article, is “Should morbidly obese children be taken from their parents?” While I do not see the Florida Department of Children and Families coming into everyone’s home with this issue, I can see how it may impact a legal case between two parents, especially if one parent is seeking a modification from a prior custody or time-sharing order. In order to file for a modification of time-sharing in Florida you must show a substantial change in circumstance. The question then would become, “Is the child’s excessive weight gain a substantial change in circumstance?” I believe, based on the health of the child, that the question may prompt legal action in the future.

According to the Time Health article, experts seem to be debating whether parenting styles can impact a child’s risk of obesity, thus making it healthier for the child to be out of the home of said parent. The concern is that if the child is gaining weight in the current environment, then there may be cause to remove the child to allow the child a chance at a healthier lifestyle in a different environment. The concern is a real one given that, “Childhood obesity can lead to a host of health problems, including Type 2 diabetes, which until recently was primarily a problem seen in adults. Overweight children can also develop insulin resistance, hypertension, high cholesterol, sleep apnea and orthopedic problems and go into early puberty,” according Time Health.

1344775_south_african_navy_helicopter_.jpgAs a military town, Jacksonville divorce and family law attorneys, along with the courts, must understand that military duty may impact a divorce proceeding or other court matter, but also will most likely impact child custody and visitation matters at some point. Florida laws have made provisions for those in the military when it comes to custody; visitation; time-sharing; and child support matters if the servicemember is on active duty and set for deployment. Florida does not punish members of the military for serving their country by assuming that is in the best interest of the children to be with the nonmilitary parent. In fact, the law provides that if a servicemember is set for deployment, then the time-sharing plan may be modified in a couple of ways:

1. The court may grant a temporary modification of time-sharing and child support and upon the return of the servicemember parent, the prior order will go back into effect. Also, the court may grant extended time-sharing for periods when the servicemember is on leave. This way there are no permanent changes to custody or time-sharing, but simply an order to get from the time of deployment to returning home; or

2. If the deployment will be for more than 90 consecutive days, then the servicemember can actually designate a third party to have time-sharing in accordance with the original order. However, that individual must be a family member or stepparent. If the other parent objects, then that parent must show why it is not in the best interest of the children to have time-sharing with the designated family member of the serving parent.

The Court’s position is not to punish individuals for serving their country, but to look after the best interest of the children while that parent is on active duty. Upon returning home, Florida Statute 61.13002 provides for the prior order to go back into effect so as not to impose a permanent change in time-sharing simply because duty to country exists. However, the statute also recommends that the provisions that will be in place during times of deployment be placed in the original order as to avoid future necessity of the court’s intervention since there may be significant time issues with notice of deployment and actually leaving. The State has also provided that such matters are to be heard on an expedited basis by the Court and the servicemember may appear by telephone if she or he is unable to appear in person due to their military orders.

Continue reading

1182878_woman_writing_in_the_agenda.jpgFlorida family law matters such as divorce, paternity and child custody or time-sharing issues are defined by Florida Statute. The statutes provide a groundwork for cases involving family law matters so that the issues may be properly addressed for spouses and the related children.

In a case involving children, the Florida Court’s now require that a time-sharing plan be developed to outline the schedule the children will be with each parent, according to Florida Statute 61.046(23). The time-sharing schedule must be included in the parenting plan and it shall be as follows:

1) The parents develop and agree to the plan and it must be submitted to the Court for approval; OR

1145534_3d_maze_4.jpgFlorida divorce and paternity cases often revolve around one parent saying they want “sole custody.” However, there is a difference between “sole custody” and parental responsibility in Florida Statutes. Florida divorce statutes define many terms, including parental responsibility.

Shared parental responsibility is defined by Florida Statute 61.046(17) as when both parents have parental rights of the child and share responsibility for the child’s upbringing. This is typical in most cases because both parents have a responsibility to be a parent to the child and to make all life-related decisions for the child, together, regardless of the geographical location of the parents.

If you are going through a divorce or paternity case in Florida, then you should speak with a family law attorney about your rights and options.

Contact Information