Articles Posted in Child Custody

Child custodyWhen can you ask the Court for an emergency child pick-up order? If your ex-spouse or, if you have not been married, the other parent takes your child for timesharing and does not return the child, what can you do?  What are your options if the child is taken out of the State of Florida?

What is an emergency pick-up order?  An emergency pick-up order is an order signed by the Court that directs the sheriff or other law enforcement officer to take a child from the person who has physical possession of your child and deliver the child to your custody.  The process is started by filing an Emergency Verified Motion for Child Pick-Up Order.  You must attach a certified birth certificate if you are the birth mother of a child born out of wedlock and no court order of paternity exists.  If you have a judgment establishing paternity or a court order showing you have legal custody, you attach a certified copy to your motion.

Compliance with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a must to ensure that Florida has jurisdiction.  See Fla. Stat. 61.514.  Florida must be the child’s home state within 6 months before the commencement of the proceeding.  The conditions in 61.514 specifically indicate under what circumstances the Court can take jurisdiction.

travel service passportWhat do you do when you want a divorce but your spouse has left to go to a foreign country?  How do you serve your spouse with divorce papers?  It can be a very complex and scary process; even to a lot of lawyers.

To commence a divorce action, there must be personal service on a spouse, meaning that a copy of the petition may be served on your spouse by sheriff or certified process server at their usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.  The spouse may also be served at their employment in a private area designated by the employer after contacting the employer.  Service may also be made on a spouse doing business as a sole proprietorship at their place of business by serving the person in charge of the business at the time of service if 2 attempts to serve the owner have been made at the place of business.

International service of process is governed by the Hague Convention on the Service of Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and the Inter-American Service Convention “IASC,” with an Additional Protocol.  There are some countries who are not a part of the Hague Convention and special rules apply for these countries.

It’s only natural that when a step parent has been a major father or mother figure in a child’s life that the subject of adoption comes up.  It makes official what has already been a reality for quite awhile.  How complicated is step parent adoption in Florida?

The step parent must consent to the adoption and the process is started by the step parent filing a sworn petition to adopt.  A copy of any judgment terminating parental rights or consents to the adoption from the parents must be attached.  If the child is over 12 years of age, a consent to the adoption may be attached.adoption

Under Chapter 63, Florida Statutes, consent of the parent is required but the court may waive the consent of:

Mother and childBeing served with a termination of parental rights petition is the first step to a complicated process in the state of Florida.  A termination of parental rights petition must include facts alleging that at least one of the grounds listed in F.S. 38.806 has been met and that granting the petition would be in the manifest best interests of the child or children as listed in F.S. 39.810.  No answer to the petition is required, but if you answer, the petitioner will need the court’s approval to amend their petition later.

Grounds for termination are as listed:

(1)      Voluntary surrender:  When you have signed a written surrender of their parental rights to the child(ren)

Child Support Contempt is a common issue with Jacksonville Family law and divorce cases. When it comes to child support, often child support contempt motions are part of the norm.  As a Jacksonville child support attorney and family attorney, I have found that frustrations regarding child support are present on both sides. Parents that receive child support are often bothered when the paying parent fails to make child support payments. The parent required to pay child support is often frustrated when he or she can’t afford to make the payments. Child support contempt proceedings usually come up at some point in these situations.

The Issue if Non-Payment and What to Do About It

Child SupportFailure to pay child support gets the receiving parent charged up. This often leads to motions for child support contempt. Once the motion for child support contempt has been filed and scheduled for a hearing, the filer has to prove two things at the hearing. First, he or she must prove that there is a valid order from the court requiring the other parent to pay. Next, he or she must prove that the other person has failed to pay as required in the child support order while having ability to pay.   Ordinarily, these two things are easy to prove.  The court’s records will, of course, contain proof that there is a valid child support order. Next, the child support payment history will show a lack of payment.

Changing Venue: Moving  Family Law Cases

One question we often receive from our family law clients is if they can change courts, also known as venue, when they move to a new area in Florida from the court where the marriage dissolution proceedings originally occurred to a more nearby court.

venue changeThe short answer to this question is yes. In family law, the courts in Florida always try to act in “best interests of the child.” This standard will be explained further in this article, but first lets explain exactly how the change in venue process would potentially work.

Before a spouse can change venue, it is important to understand where a family law proceeding can actually be brought. According to the Florida Statute 61.13, a family law case may be brought in “the circuit court in the county in which either parent and the child reside or the circuit court in which the original order approving or creating the parenting plan was entered…” This usually means that venue will start in the court where the divorce was filed, and stay in this court for all related matters such as equitable distribution, alimony, parenting responsibility, child support, and all modifications.

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The need for emergency pick up orders can be brought about for various reasons.  A couple of the most common reasons I’ve encountered in my practice as a Jacksonville family lawyer are appropriate to set the stage.  Families made up fathers, mothers, and children where the parents were never married are common.  When these families split, there are less issues to address than in an actual marriage, but the most important issue still remains– the children and how time will be split between the parents while continuing to raise them together.  Under Florida law, the mother is the natural guardian of a child born out of wedlock.  A father’s signature on a birth certificate creates a legal presumption that the father is, in fact, the father, but does not give automatic rights to the father for visitation.  Visitation rights, referred to as “time sharing” must be established by the court with a parenting plan approved by the court.

Emergency pick up orders are sometimes necessary.I have found that most couples split without going to the court and filing paternity actions so a parenting plan can be established.  They attempt to sort out visitation without family lawyers and without judges.  This can work, but there are issues that can become thorns for the parents.  Two common issues I encounter as a Jacksonville family lawyer are: (1) one parent refuses to send a child back after the child has been with the other for time sharing; and (2) one parent believes that the child is in some sort of danger while in the care of the other parent and wants the court to help reclaim possession of the child.  Of course, these issues can arise even when a parenting plan has already been put in place, but resolving the issues is easier when there is an established case and a parenting plan in effect.  Note that there are different variations of scenarios that include couples that were once married and couples that were never married; however, the general principles are the same. Continue reading

According to Florida law, “It is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing.”  Simply put, people are expected to co-parent, meaning that they act as if they are still together, at least as far as it relates to the children.  This idea can sometimes get lost in the mix of things.  As a Jacksonville family lawyer and divorce lawyer, I have found that some of the biggest issues in family and divorce cases come from people’s emotions getting the better of them.  Spite can mix with anger and other emotions and lead to parents making irrational decisions concerning the parties’ children.  Way too often these irrational decisions manifest in a lack of co-parenting between parties.  The state’s policy is that each parent will have the right to spend quality time with the children, the right to participate in the lives of the children, and be part of major decisions affecting the children.  Even more important than the parents’ rights is the children’s well-being and best interest.  Having both parents involved in a child’s life is normally the best thing for him or her.

Co-parenting means children don't have to choose a parent.When a father and mother are properly co-parenting that means they are each doing what is necessary to make the lives of the children and the success of the children their number one priority.  They are working together to ensure that the children’s best interest are always put first. Simple courtesies must come from both sides, because things will arise that make it necessary for accommodations to be made for and by each parent.  For example, if a parent is running late to pick a child up for visitation, if the parenting that is waiting with the child doesn’t give a reasonable amount of extra time, this could cause issues.  When the parents don’t get along, they don’t co-parent well, and what happens a lot of times is the waiting parent won’t allow the late parent to pick the child up due to being late.  This is not successful co-parenting.

Other than being the right thing to do for the children’s sake, the willingness of the parents and their ability to successfully co-parent is something that courts will take into consideration when making decisions about custody and timesharing during a divorce or timesharing modification AND, it will be considered afterwards, if contempt proceedings come about. Parents lack of co-parenting after a parenting plan has been put into place will continue to cause issues and create more litigation, because the parent that feels wronged will sometimes file a Motion for Civil Contempt.  Contempt actions are all about a person not doing something that the judge has ordered.  Here, if a parent is not cooperating or following the parenting plan, he or she could be found in contempt and have sanctions, such as fines, imposed.

Relocation after a divorce where there are children involved can be a touchy situation.  On the one hand, there is a parent that believes he or she needs to move to accomplish some perceived improvement in life.  On the other hand, there is a parent who will suffer by having an increased distance between him or her and the children.  Both non-majority time-sharing and majority time-sharing parents can have concerns about the other ex-spouse moving far away.  However, usually, the situations call into question whether a majority time-sharing parent should be allowed to move with the children.  These types of situations are even more serious when the majority time-sharing parent wants to move with the children to another state.  Although the move is more drastic, the same factors will be considered.


Relocation can a touchy situation.

Relocation is addressed by Florida Statute 61.13001.  Per statute, “ ‘Relocation’ means a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing. The change of location must be at least 50 miles from that residence, and for at least 60 consecutive days not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of health care for the child.”  The parent seeking relocation has the burden of proving that the relocation is in the best interest of the children.  The court will consider many factors, including the reason for the move, the effect the move will have on the time-sharing of the other parent, relevant economic considerations, and many other factors.

Child custody and time sharing battles in Florida divorces are always stressful situations for the people involved.  Jacksonville divorce lawyers and custody lawyers zealously represent clients who each want something different when it comes to custody or time sharing.  The judge hearing the case has to decide what is in the children’s best interest.  This is the standard that is always applied.  What the parties want, including the children, is not the controlling factor.  When the husband and wife are both fit parents and can provide a stable environment for children, difficult decisions have to be made.   So what factors will the judge consider in determining child custody and time sharing battles in Florida divorces?

man-woman-heart-5-1056041-mFlorida Statutes 61.13(3) lists several factors that judges can consider, but gives judges discretion to consider any facts that the judge deems relevant.  Click the link above to view the complete list and the full body of the statute.  Florida’s state policy is that each parent is afforded the chance to build a strong relationship with children.  The first factor on the list of things the judge is to consider is, “The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.”  In view of the State policy and the importance of having both parents actively in children’s lives to help produce healthy, emotionally balanced children, it is no coincidence that this factor is listed first.  Other factors include the future division of parental responsibility, the reasonable preference of the children, school and community records of children, moral fitness of parents, and more.

For help with child custody and time sharing issues, contact the Law Office of David M. Goldman, PLLC today at (904) 685-1200.  Initial consultations are free.  Our experienced Jacksonville divorce lawyers can help you understand your rights as a parent and coach you through a stressful divorce.  Our attorneys have years of litigation experience and are prepared to fight for you when needed, but are also skilled in assisting you with uncontested divorces or collaborative divorce.  Schedule a consultation today.

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