Parenting Plans / Time Sharing

March 23, 2012

Florida Child Issues Including Custody, Visitation and Time-Sharing Can Be a Challenge for Parents

Written by: Lenorae Atter, Attorney at Law

As a Jacksonville, Florida divorce lawyer, I handle cases dealing with primary time-sharing issues, previously known as custody battles. In representing one parent against the other, my job is not only to represent my client, but to also make certain that in doing so I am preserving what is in the best interest of the child. The best interest of the child standard is used throughout almost every state in determining issues such as custody, time-sharing, visitation, parental responsibility, and the like. When the best interest of the child is in jeopardy the courts find it their duty to protect the children from irreparable harm, both physically and mentally.

A parent who fights for custody simply because she or he does not want to pay child support or simply because she or he needs child support, are not looking out for the best interest of the child, but their own best interest. This type of divorce and custody dispute can lead parties to make poor decisions for the children and cause a rift in their relationship with the children and also with the other parent, thus making it difficult to make big decisions together for the sake of the children. Once the case is over, the judge does not have a magic wand to put all relationships back as if the battle never occurred. Typically, the child will then grow-up with parents that barely communicate and the child may or may not have a solid relationship with each parent at the end of the day.

Bringing children into your legal battle is not for the child’s benefit. The child should be protected from the divorce battle or custody battle that is ongoing with the other parent. When the court is looking to which parent is the best choice to take care of the child the majority of the time, the judge typically looks for which parent is more likely to look after the interests of the child, help to foster a good relationship with the child and the other parent, etc. A drawn out dispute that leads to false allegations and actions of emotional or physical harm to a child is not going to bode well with any judge in Florida. Therefore, keeping these things at bay as parents, and trying to resolve matters in a light most favorable to the kids is more important than the financial strain of paying child support.

February 29, 2012

What Can I Do in Florida If the Other Parent is Saying Bad Things About Me to Our Child?

By Erlinger Family Law

Florida 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.

February 21, 2012

Florida Divorce and Custody Disputes that Lead to Parental Abduction: What To Do To Recover Your Child

By Erlinger Family Law

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.

February 17, 2012

Can Florida Parents Charged with Domestic Violence be Awarded Custody or Visitation Rights?

By Erlinger Family Law

In the state of Florida, if a parent has been convicted of misdemeanor, first degree or felony domestic abuse charges, the judge may rule that it is not in the child’s best interest to award custody or time-sharing rights to that parent. The same is true if the parent is in prison for a crime that would warrant terminating parental rights. If a parent is denied parental responsibility by the courts, he or she has the right to ask a judge to consider evidence that might prove that it would not harm the child to allow the parent custody or visitation rights. The court’s job is to look at the fitness of the parents and what is in the best interest of the child. As a Jacksonville divorce and family law attorney I often have parents ask whether they will be granted time-sharing (visitation) or if they have a chance of getting majority time-sharing (custody). When evaluating this question, it is important to look at the historical nature of the family unit, the likelihood of the parent facilitating a good relationship with the child and the other parent, and multiple other factors. When there are reports, accusations or evidence of abuse in the family, then the question of custody is harder to answer because those factors will be considered by the court due to the interest in not putting the children in harm’s way.

If the parent has not been convicted of a domestic violence or child abuse offense, the judge will generally consider evidence of abuse, even if the accusing party has never filed an injunction for protection from domestic violence against them. The judge will use the evidence to determine what type of parental rights the alleged abuser is entitled to. The accused or convicted, may present evidence and testimony to dispute such accusations or to show the judge how things have changed since the incident occurred. If certain activities have been completed, including counseling, then the court may take that into consideration in determining whether there is still a propensity to commit violent acts.

If an abusive parent is awarded visitation rights, the other party may request that the visits be limited or supervised. It will be up to the judge to decide whether or not the abuser represents a risk to the child or the other parent that warrants supervised or restricted visitation. A neutral third party, like the Family Nurturing Center in Jacksonville, Florida, typically does supervised visitation. The center actually observes the visitations and records them for additional protection of the children. If supervised visitation or time-sharing is ordered and over time there are no issues, then the parent observing such time-sharing may ask the court to modify the time-sharing plan to stop the supervision, but the court will again evaluate the case based on the best interest of the child.

January 3, 2012

How Can Military Duty Impact Time-Sharing or Visitation with Children in Florida?

By Erlinger Family Law

As 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.

December 22, 2011

How Can I Best Present My Case for Keeping My Children in a Florida Custody or Time-Sharing Case?

By Erlinger Family Law

Paternity cases and divorces involving children revolve around the best interest of the child standard in Florida. Over the years, the Florida legislature has attempted to make the process less adversarial as it relates to child issues like custody, visitation and parental responsibility. In its attempt at doing so, the legislature changed a number of things including the terms used, so instead of visitation we now say, “time-sharing plan,” and instead of custody we say, “primary time-sharing parent.” As a Jacksonville divorce and family law attorney, this change in terminology helps, but it does not resolve the issues that surround such legal actions because parents do not want typically want to go days without seeing their children when it comes down to development of a time-sharing plan, so the Court can appoint a parenting plan coordinator to evaluate the parents, the children, the environments and then make a recommendation to the court based on that evaluation.

A parenting plan coordinator is available through Florida Statutes, and can be appointed by the Court upon a party’s motion. Often, the coordinator is a psychologist trained to deal with family matters, such as those related to a divorce or paternity case. Also, the coordinator’s background in psychology lends way to his/her understanding for an in depth analysis of the parties as they relate to the children. Ultimately, the parenting coordinator is tasked with the job of evaluating both parties and the children to determine what is in the best interest of the children as it relates to a parenting and time-sharing plan.

A parenting coordinator is a nice tool to use during a divorce or paternity case when the parties do not agree upon visitation. The parenting coordinator is able to do a more detailed analysis of the parents and their relationship with the children and help the Court and the parties see what may truly be best for the children. Since the coordinator typically meets with the children outside of the presence of the parties, the coordinator has an opportunity to hear the children’s concerns and interests for their own futures, thus giving them a voice. Since children do not get to testify in Court unless they are deemed an age and maturity to handle the situation, often the coordinator is the kid’s only line to the judge. Determining the best interest for children is not an easy task, so arming yourself with a coordinator that can look at all sides of the situation and provide an objective perspective can be a very useful tool when dealing with such matters.

November 7, 2011

Florida Divorce and Custody: How Does Florida Define a Parenting Plan?

By Erlinger Family Law

Divorce and custody battles can put a strain on a family, especially the children. Florida divorce and custody laws provide provisions that are designed to make the battle easier on the family by keeping the children in the forefront. To that end, Florida laws have changed in the last few years to include name changes, such as time-sharing instead of custody/visitation and the development of a parenting plan to help parents think through the issues that may arise for the child.

Florida Statute 61.046(14)defines the parenting plan as, “…a document created to govern the relationship between the parents relating to decisions that must be made regarding the minor child and must contain a time-sharing schedule for the parents and child. The issues concerning the minor child may include, but are not limited to, the child’s education, health care, and physical, social, and emotional well-being. In creating the plan, all circumstances between the parents, including their historic relationship, domestic violence, and other factors must be taken into consideration.” The idea is make the parents and the court aware of issues that have existed and may exist in the future while trying to raise a child separately.

Each family is different, so you should speak with a Florida family law attorney regarding your case.

November 4, 2011

How Does Florida Define Sole Parental Responsibility in a Divorce or Paternity Case?

By Erlinger Family Law

Florida divorce and paternity cases can involve issues regarding parental responsibility. Parental responsibility is the term used to define the actual building of parent/child relationships and parental decision making for children. When both parents are mentally healthy, stable and responsible individuals there is normally not a question of the division of such responsibilities, they will be shared. However, what happens if one parent is absent and remained absent from the child’s life or one parent has a severe drug addiction; will the parents still be required to make decisions together?

Florida Statute 61.046(17) defines shared parental responsibility as both parents having equal share in major decisions involving the children (i.e. school; non-emergency surgeries, etc. If it is not in the best interest of the children for the parents to share these decisions, then Florida Statute 61.046(18) defines sole parental responsibility as a court-ordered relationship in which one parent makes decisions regarding the minor child. This is normally an issue when the Court or parties agree that one parent is more likely to take responsibility for the children and the other party is less likely to be able to engage in such decision making as would be required during the life of the children.

You should speak with a family law attorney about your rights and options regarding matters involving your children when going through a divorce or paternity action.

October 31, 2011

How Does Florida Define Shared Parental Responsibility in Divorce and Custody Cases?

By Erlinger Family Law

Florida 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.

August 26, 2011

Determining the “Best Interests” of a Child in Florida Family Law Matters

By Erlinger Family Law

Florida courts make a plethora of decisions regarding children. These decisions range from timesharing and decision making, safety and permanency planning, and proceedings for termination of parental rights. Whenever courts make such decisions, it must consider whether its decision would be in the “best interests” of the child. Most States have a statute requiring that the child’s best interests be considered whenever certain types of decisions regarding a child’s custody, placement or other critical issues are made. Although there is no specific Florida statutory definition of “best interests of a child,” the concept typically refers to the deliberation that courts undertake when deciding what type of services, actions and orders will best serve a child as well as who is best suited to take care of a child.

During a Jacksonville Florida child custody proceeding, the court will consider a number of factors to determine the “best interest” of a child. These factors may include the love, affection, and other emotional ties between the parents and the child; the mental health, physical health and morality of the parents; and most importantly, which parent is more likely to encourage contact between the child and the other parent. For a complete list of the best interests factors, see Florida Statute 61.13.