Articles Posted in Uncategorized

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.

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.

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.

668001_danger_school_traffic_signalParties are able to file to dissolve their marriage on their own, without the assistance of legal counsel. This allows for many people who are unable to afford legal counsel to utilize the legal system and move forward with their desires of achieving a divorce. While legal counsel is not a necessity, it is an incredible asset to have. When a party represents themselves in a divorce, or in any legal case for that matter, they are presenting to the court that they are competent to act and represent their interests to the same level of an attorney. Therefore, they are attesting to the court that they are aware of the rules of evidence, the statutory considerations in their cases, defenses available, and statutory deadlines.

Evidence is essential to cases as without the proper presentation of evidence key information can be kept out of the court’s considerations. If the court is unable to evaluate and consider important evidence the support the positions of the parties then the trial merely becomes an evaluation based on he said she said. Prior to even reaching the stage where evidence can be considered there may be issues with meeting appropriate statutory deadlines for disclosing information to the other party. At the beginning of each case an exchange of discovery items is supposed to occur between the parties. There are specific items that must be furnished, deadlines that must be adhered to, and filing requirements that could greatly affect one’s ability to evaluate the case if the appropriate items are not provided in the appropriate time. In additional to missing out on the opportunity to evaluate a case fully, missed deadlines could lead to sanctions by the court to encourage adherence to the rules.

Attorneys are often wonderful assets to cases. Each divorce is unique and the backing of sound legal knowledge as to how the court will evaluate the statutes surrounding each case is essential to success. Things like alimony, equitable distribution of property, timesharing with children, and child support awards all have very specific statutory language that, when used appropriately, could possibly further benefit your case in your favor. Without the knowledge of these statutes and the defenses available to claims made against you, your case could fail. The do it yourself divorce may be appeal to you early on due to the lack of money spent on attorneys, but oftentimes the regret comes far too late after the judge issues his final ruling.

HandshakeDuring a divorce parties must divide the assets and the liabilities accumulated during the course of their marriage. One of the first things they tend to divide is the personal property items. Parties typically divide this property based out of simple want and desire. But, often times they hit a roadblock, as there is inevitably an item that neither of them wants to give up. How are parties to resolve these conflicts when they reach this barrier? Parties who are agreeable with one another tend to approach these issues by engaging in a give and take type of negotiation. However, in the midst of the emotional split one party tends to concede on the item, due to simply wanting to resolve this issue and move forward. While an amicable split and division of personal property is ideal, this is typically not the normal set of circumstances. Thus, it is essential for parties entering into divorce to understand what the court will consider when they move forward with dividing your assets and liabilities in litigation.

If warring couples are not able to amicably spit their personal and real property they will find themselves at the mercy of the court that will take into consideration the following factors related to the items: the classification of the item as a martial or non-marital asset, the value of the item, items already distributed as a part of equitable distribution, if the liabilities that have been distributed, the contributions to the marriage by each spouse, the economic circumstances of the parties, the length of the marriage, any sacrifices that lead to the interruption of the career or educational pursuits of a spouse, the desirability of one spouse in maintaining the property, the contribution of each spouse to acquiring, enhancing or producing income of the assets, any intentional depletion of the asset, and any other factors that the court would think must be considered to do equitable justice to the parties. The statute governing the distribution of property is found in Florida Statutes 61.075.

If a party believes that the personal property in questions should not even be subjected to the equitable distribution scheme they will need to prove that the property in question is non-marital property. Generally non-marital property is property obtained prior to the marriage, for which marital money was not used for the enhancement or purchase of the item, and it was not later gifted to the marriage.

FatherCustodyFlorida statutes require unmarried fathers to establish Paternity. While many parents believe merely signing a birth certificate is sufficient to establish rights to timesharing and parental responsibility regarding the child, it is not. I see many fathers who were never married to the mother of their child(ren) who act under the presumption that they have rights to see their child(ren), prior to legally establishing those rights. While each parent may not have the rights to timesharing with their children, each parent has a responsibility to support their children.

Through the Florida Courts an obligation for payment of child support can be established without establishing a right to timesharing. Florida Statue 409.256 allows for the state to begin a Paternity action in the following circumstances: the child’s paternity has not been established, when no one is named as the father on the child’s birth certificate or the person named as the father is the putative father named in an affidavit or a written declaration as provided in subparagraph 5 of the statute, The child’s mother was unmarried when the child was conceived and born, The department is providing services under Title IV-D., or The child’s mother or a putative father has stated in an affidavit, or in a written declaration as provided in s. 92.525(2), that the putative father is or may be the child’s biological father. The affidavit or written declaration must set forth the factual basis for the allegation of paternity as provided in s. 742.12(2).

While the establishment of child support payments without the establishment of timesharing for a Father can occur in numerous circumstances, I typically see it occur after the mother seeks state sponsored aid, which would fall under the category of the department providing services under Title IV-D. Often times when a mother is in need of state financial assistance, such as WIC, food stamps, or HUD housing, her case worker will request will inquire as to the support she is receiving, or not receiving, from the father of her children. The state will then seek to establish paternity of the child for the purposes of implementing a child support obligation on the father. Since the establishment of a child support obligation does not necessarily establish any rights of the father over the child, the father should file with the putative father registry in the State and file a petition to establish his parental rights. Filing with putative father registry allows for the State to be on notice that there may be a child that is biologically connected to the registered man and if anyone ever tries to terminate the parental rights of the child, then the registry is checked for a potential father of the child. Whereas, filing a petition to establish parental rights will allow for the establishment of timesharing, parental responsibility, and a child support arrangement (if one is not already in place).

MoneyIn Florida parents are responsible for the support of their children. This support is not limited to just emotional and physical support, but also extends to financial support. This financial support is regulated by Florida Statute 61.30. There is a common misconception that exists amongst many clients regarding the amount of support each child is due. Many clients believe that if they are awarded 50/50 timesharing the support award will terminate. The logic is often based on the notion that if the parents are equally dividing time then there will be no need for extra financial support beyond what is provided during the time that the child is with each parent. This logic is flawed when dealing with Florida child support cases.

The Florida Statutes require the courts to assess child support by combining the net monthly income of the parties responsible for support, and then calculating the individual responsibility by determining the parent’s share of support based on their income. This calculation is done by dividing the parent’s net monthly income by the parties’ combined net monthly income. Then once the share of support is determined a calculation is made based on the timesharing awarded to each parent.

Typically when parents have a substantial difference in income the 50/50 timesharing award will not insulate the higher income earning parent from not paying some child support. The purpose of the Florida child support model is to allow the supported child to be financially supported to the same extent they would be if the parents lived together. Thus, when the income amounts are disproportionate and the timesharing award is 50/50 the higher earning parent will typically still owe a child support obligation to the lesser earning parent. While this may be the case in some instances, it does not apply uniformly to all cases.

Teen Texting

The rapid growth in communication technology has led to many parents playing catch up. Unfortunately, as with most technological advances, the advent of mobile phones, amongst other things, has led to the almost elimination of home phones and pay phones as the primary means of communication. In an almost domino like fashion, beginning with the popular use of mobile phones, this shift has placed more mobile phones in the hands of children, who prior to the decline of home phones and pay phones, did not, typically, need their own independent means of communication. When purchasing a phone for your child, you will find that even the most basic mobile phone models have advanced capabilities. Beyond calling, phones are now equipped with means to communicate silently through text messaging, video chat, photo transmitting, and an ability to upgrade your phone capabilities through the downloading of various applications. The shifting times has essentially made it the norm for parents to choose to place private super computers in the hands of children, for their unlimited use and enjoyment.

Concerns should arise with the privacy in communication afforded to children through the ownership of a mobile phone. Parents should remain aware of whom the child is speaking with and the nature of those communications. In an effort to change with the times, the Florida Statutes attempt to limit the communication of minors by placing consequence on children who engage in the act of sexting. Florida Statute 847.0141 provides that a minor commits the offense of sexting if they knowingly use a device to transmit data or images to another minor containing any photograph or video of any person which depicts nudity and is harmful to minors; or they possess a photo or video that was transmitted to them which depicts nudity, and is harmful to minors. The sexting statute must be read in conjunction with other statutes to understand the application of the statute specifically related to defining nudity and harm to children.

While children may believe that transmitting certain images is harmless, funny, or acceptable based on society’s standards, these images could land them in trouble with the law. Statutorily for a first time offense the minor is ordered to pay a fine or eight (8) hours of community service and/or enroll in a training program. Minors who are found to have committed more egregious conduct, such as, transmitting images containing sexual conduct or sexual excitement, violating this statue multiple times, or do not comply with the court ordered penalties could face stricter penalties for their behavior.

Written by: Lenorae Atter, Attorney at Law

992546_bonding.jpg

Bristol Palin’s ex-boyfriend, Levy Johnson, is now going to father another child, according to recent stories. Recent news reports indicate that the former Wasilla mayoral candidate is expecting a child with his present girlfriend, Sunny Ogelsby. Again, entering into a paternity issue since he is unmarried to this mother-to-be. Contrary to popular belief, at least in Florida, paternity of a child born out of wedlock is not determined by a birth certificate or DNA, but by actually being established by the court. Therefore, Levy Johnson will most likely find himself in another courtroom to decide the fate of another child and the child support he will have to pay.

According to Levy Johnson, when questioned about his relationship with the child he shares with Bristol Palin, he has not been much of a father. He has told reporters, recently, “The Insider,” that he has not been able to exercise any visitation or time-sharing with the child due to Bristol Palin and her family denying him any visitation. This time, he has said he anticipates being involved with the child that was recently conceived after the couple, Johnson and Ogelsby, forgot to take birth control with them on a romantic getaway.

images.jpegIn Florida you may be required to pay child support even if you are unemployed. You might ask, “how do they calculate my income for child support guidelines if I do not have an income?” The answer is that income may be imputed or attributed to you in certain circumstances. For instance, if you became unemployed voluntarily, the court may impute income to you at the level you were last earning. That means if you quit your job, decided to change fields and became unemployed as a result, or moved to a different market where you can’t find a job, the court may attribute income to you at the level you were earning or are currently capable of earning.

In order for the court to impute income, there must be competent substantial evidence supporting the imputation. Quinones v. Quinones, 870 So 2d 108 (Fla 2d DCA 2003) The imputation of income must be supported by specific findings of fact indicating the amount and the source of the income. Burkhardt v. Bass, 711 So 2d 158 (Fla 4th DCA 1998) The court may also find that a person is underemployed if they have taken a job that is below their skill set with no reasonable explanation. Lascaibar v. Lascaibar, 658 So 2d 170 (Fla 3d DCA 1995)

The burden of proof in a proceeding that calls this issue into question is on the spouse claiming that the other spouse is voluntarily unemployed or underemployed. If the unemployment is not voluntary and you do not have the ability to pay child support, the court will not require you to pay. However, there are few instances where a party has absolutely no source of income and does not have the ability to work.

Continue reading