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

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.

 

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.

Divorce is often time filled with emotional turmoil.  Spouses are splitting up the property, the conversations can be heated, and at times children are thrown in the midst of this evolving chaotic environment. As an attorney I hear a variety of reasons attributed to the breakdown of a marriage. Often times finances, differing parental styles, general distain, and infidelity cause irreparable rifts in even the most stable marriages. Contentious spouses come into my office constantly waiting to bring up every flaw and every wrongdoing of the other party. While an attorney’s office may be the first place many clients feel they can unload the weight of the marriage dysfunction, the courtroom is also a common place clients want to unload this weight, even though it may be to their own detriment.

Although the goal for the angry spouse seems riddled with vengeful desires, a skilled attorney would utilize caution and tact before bringing up the allegations made between the spouses in open court. An attorney must exercise judgment and apply the statutory considerations to every situation that arises. Whereas, one spouse may find it important to mention to the court that since the separation the other spouse has begun dating or that one spouse is engaging in a same sex relationship. A skilled attorney knows that while both of these situations stir the emotions swirling around the divorce mentioning these facts to the court may not be of the utmost importance.

Florida is a no-fault divorce state. This means under Florida family law  if a party is seeking a divorce they do not have to prove specific grounds, other than that the marriage is “irretrievably broken”, for the court to grant the divorce. While the court may not care to hear of the other party’s indiscretions for the sake of deciding whether or not to grant the divorce, the court may be interested in these facts when considering other facets of the case. For example, the court may consider extramarital affairs and conduct of the other spouse when making a determination as to alimony and timesharing of the children. The court may consider a party’s extramarital relations if those relationships were conducted in a manner that caused harm to the child or marital funds were dissolved by the other spouse to maintain that extra-marital relationship.

“I can’t take this anymore, we must get a divorce!” “Well, I’m not leaving.” This dialogue, to the extent there is any dialogue at all, is common prior to and during a Florida divorce case otherwise known as a Florida Dissolution of Marriage.  This conversation then leads to the following question:  Which spouse remains in the marital home during the pendency of a Florida divorce?

During a Florida divorce there are so many moving pieces and areas filled with uncertainty. Some divorcing couple move into separate residences prior to either party filing for divorce. Yet, there remains the other group of couples who are still living in the same home at the time of the initiation of the divorce proceedings. If one party does not voluntarily choose to move out of the shared residence, and the parties do not wish to continue to live together, who gets to remain in the home under the dissolution / divorce laws in the State of Florida? When real property or a leasehold is jointly titled to spouses both spouses have the right to the use of the owned or leased property, until a temporary order of exclusive use and possession or an ordered injunction placing restrictions on one spouse’s 1122707_divorceuse is entered by a judge. If both parties remain in the home upon the filing of divorce, and neither party wants to budge on moving out of the home, the courts can be brought into the equation to have a neutral party make a ruling regarding who is to remain in the home. The court does not automatically get involved regarding who remains in the residence unless the appropriate motion is made by one of the parties to the divorce. The obligation of the parties and a Florida family law judge’s involvement in making a determination as to who is to remain in the residence is contingent upon a wide variety of factors. There is no simple answer to the question of who will stay and who will leave. The burden of proving that the other party should vacate the premises will be on the party making the motion. The court will consider the numerous factors and make a ruling based on Florida law and equity.

If you are leasing property together and the name of both spouses is on the lease both parties have the legal right to remain in the home, but that’s not always the ideal situation in the midst of a divorce. The lease is a separate agreement with yourself and the owner of the property. More likely than not the contract does not include a clause allowing you to dissolve the lease agreement as a result of your pending divorce. The obligation due under the contract will still remain. Even though you do not own the property in question the court still may rule on who has exclusive use and possession of the leased premises. While the court has the authority to make this ruling this is still an arrangement that should be discussed with the owner of the property so the appropriate changes can be made to the lease agreement and access can be restricted to the non-possessing spouse.