Visitation Issues

February 22, 2012

Florida Child Support Can Be Reduced or Increased Due to Visitation

Child support in Florida cases is based on the income of the parties and the total income of a shared household. The pro rata share of each party’s income is a determining factor in the overall calculation of child support. As a Jacksonville lawyer handling child support cases, I try to educate my clients on what child support is meant to provide, including a roof over the child’s head, electricity and water for the child, gas in the car to transport the child, etc. A factor in the determination of child support is time-sharing or visitation exercised by the parties. In Florida, there is an automatic calculation of time-sharing at 20% of the time and anything over that amount may be a factor in reducing the amount of child support. In addition, the Florida child support guidelines provide credits for multiple items, including but not limited, daycare expenses and health insurance. In determining the income of the parties, the Florida Statute allows for the income of the parties to be determined based on taxable and nontaxable income, so if a party is in the military that party’s BAH and BAS pay will be considered income.

Florida family law cases are often required to go to mediation to determine child support, time-sharing (e.g. visitation or custody pre 2008), and the like. A mediated agreement is an agreement between the parties regarding all aspects of the case and it is reduced to writing and entered as an order with the court. However, if the parties do not have a time-sharing plan that is ultimately formalized into writing and entered by the court, then child support may be impacted. For example, if the case ONLY involves child support, such as cases brought by the Florida State Department of Revenue, then child support will be calculated without a time-sharing plan.

Sometimes, parents decide that they do no need to go to court to establish a time-sharing plan because they already have a verbal agreement and there are no visitation issues associated with their case. As such, the parties may allow the court to determine child support without actually entering a true time-sharing plan with the court. However, in 2011 the 1st District Court of Appeals in Florida made it clear that child support calculations may only defer from the usual 20% time-sharing credit IF the time-sharing plan is reduced to writing and entered as a time-sharing plan with the court. In the case before the appellate court, the parties had agreed to a verbal time-sharing plan where the nonresidential parent had the child 40% of the time. The appeals court found that unless the time-sharing plan was reduced to writing and approved by the court, then the 40% time-sharing that had been established by the parties could not reduce child support. Therefore, the paying party was required to pay more than would have been necessary had the time-sharing plan been entered with the court. DOR o/b/o Sherman v. Daly, 74 So.3d 165 (Fla. 1st DCA 2011).

February 21, 2012

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

By Wood, Atter & Wolf, P.A.

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 Wood, Atter & Wolf, P.A.

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 27, 2012

What is Mediation and I Am I Required to Go in a Florida Divorce or Paternity Case?

By Wood, Atter & Wolf, P.A.

In a divorce or paternity case involving issues with children including time-sharing/visitation, parental responsibility or child support, the court may refer the parties to mediation. Florida law provides for the judge in such a proceeding to send the parties to mediation over disputed matters to determine if such things can be settled out of court, Florida Statute 61.183. As a divorce and family lawyer in Jacksonville, it has been my experience that mediation can be beneficial to both parties without going to trial because the parties have more control over the outcome.

What is mediation? Mediation is a formal negotiation process involving the parties, their attorneys and a neutral third party (the mediator). The mediator’s role is to help facilitate the negotiation process by working with both parties to reach the best outcome. Mediation often starts with everyone in one room (e.g. a conference room) and the party’s attorney will give a brief overview of the case and what the client is looking to achieve. Once the attorneys have completed the opening statement to the mediator, the parties are divided into two separate rooms. The mediator will typically start the process by talking to the party that initiated or filed the court action and will then go in between the rooms to see what may be resolved. Everything that is shared with the mediator is confidential and everything that happens at mediation is confidential and cannot be used at trial if the case is not resolved.

While going through this process, the mediator can make suggestions to both parties about what his/her experience has been with the judge in the case and give recommendations for offers to each party in order to help facilitate an agreement. However, the mediator is not allowed to provide legal advice to either party, even if she/he is not represented.

January 5, 2012

Can I Have Email and/or Skype Communication with My Child in Florida After a Divorce?

By Wood, Atter & Wolf, P.A.

Florida divorce and custody battles can impact the parent-child relationship and often raise concerns for both mother and father. Often, parties are concerned that since they may not see their child on a daily basis that the relationship with their child will lessen over time. While telephone communication is vital to maintaining the relationship with the parent and child, a parent that lives long distance from the child, especially, may miss the face-to-face interaction and want more than simple phone calls. With the invention of webcams and communication availability through things such as Skype, the courts have had to evolve to include such mechanisms. As a Jacksonville, Florida divorce and family lawyer I often ask my clients if they have access to the internet and whether the computer has webcam accessibility because I want to make certain that if video conferencing is available, that we request the court enter an order for electronic communication.

In accordance with Florida statute 61.13003, the Court may look at a number of factors before ruling on the use of electronic communication. Some of the factors include but are not limited to the availability of the equipment to both parties; whether the parties can afford the electronics necessary; the incomes of the parties to determine who should be responsible and how for the costs; whether telephone communication; whether there is a substance abuse issue of a parent; and if it is in the best interest of the child to have such communication.

If the court finds that electronic communication is in the best interest of the child, then the court also may impose safeguards to protect the parent and child from abuse of the electronic communication. There are concerns for safety online, so the Court has the discretion to impose rules on where the communication may occur, what time, etc.

January 3, 2012

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

By Wood, Atter & Wolf, P.A.

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.

November 7, 2011

Florida Divorce: How Does Florida Define Time-Sharing in a Visitation Matter?

By Wood, Atter & Wolf, P.A.

Florida 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

August 29, 2011

Relocating Out of State – What Are the Florida Family Law Rules in Place?

By Wood, Atter & Wolf, P.A.

Following a divorce, when one Jacksonville Florida parent wants to move out of the State of Florida it can affect all parties involved, including: parents, children, grandparents and other extended family. As such, disputes often arise and may be difficult to resolve. According to Florida’s Relocation Statute, § 61.13001, strict procedures must be followed in relocation cases. Before a parent moves a child more than 50 miles away from their principal address, the primary residential parent must either: obtain a written agreement from all parties entitled to visitation with the child, or file and serve a Notice of Intent to Relocate.

A Jacksonville Florida parent may legally relocate the child’s principal residence more than 50 miles away if the relocating parent and the non relocating parent, along with any other person entitled to visitation with the child agree to the relocation by written agreement. A verbal agreement is not enough. The written agreement must include the following: consent of the relocation from all parties involved; visitation rights for the non relocating parent and anyone else entitled to visitation with the child defined; and any transportation arrangements related to the visitation, if necessary.

If the parents cannot agree to relocation by a written agreement as discussed above, then the primary residential parent must file a Notice of Intent to Relocate. The Notice of Intent to Relocate must be signed under penalty of perjury and include specific and detailed reasons for the proposed move such as: financial reasons, a better job, better schools, increased family support, etc. In addition, a new proposed visitation schedule for the non relocating parent must be included. The non relocating parent has 30 days to object to the relocation after they have received the Notice of Intent to Relocate. If the non relocating parent does not timely object, then the relocation will be allowed, unless the court finds that it would not be in the child’s best interest.

August 17, 2011

The Underlying Cause of Parental Kidnapping: Domestic Violence.

By Wood, Atter & Wolf, P.A.

Parental kidnapping affects families across the nation. According to The United States Department of Justice, 200,000 children are victims of family abductions per year. Sadly, most people do not realize that domestic violence is the underlying cause in many cases.

When Jacksonville parents/ parents nationwide take their children in domestic violence cases, the kidnapping usually occurs in either of the following scenarios. In one scenario, the batterers take the children in order to harm their victims. In the other, the victims flee with their children in an effort to protect themselves and their children from the batterer’s violence.

Batterers will often use their children as a way to hurt or frighten their former spouse. For example, they may pursue custody or visitation litigation as a means of trying to control their former spouse. In addition, they may use the custody proceedings to obtain more information about their former spouse, to continue to monitor them or to perpetrate additional violence.

August 16, 2011

Florida Divorce and Summer Time-Sharing: Dealing with Summer Holidays, Summer Camp, and Vacation

By Wood, Atter & Wolf, P.A.

Jacksonville Florida parents who go through a divorce can write a parenting plan to decide how they will divide their children’s time after a divorce. The plan provides a roadmap for the child’s future, and is the most important document in a Florida divorce with children.

A parenting plan approved by the court must at a minimum: describe how parents will share and be responsible for the daily tasks associated with the upbringing of the child, the time-sharing schedule arrangements that specify the time that the child will spend with each parent, a designation of who will be responsible for health care, school-related matters, other actives, and the methods and technologies that the parents will use to communicate with the child.

A parenting plan has two separate components: (1) decision making- parental responsibilities and privileges to make decisions relating to the health, education, and welfare of the child, and (2) time sharing- where the child lives at any given time and contact with the other parent. These two aspects are distinct and must be examined according to the best interest of the child.