Articles Posted in Child Custody

There are cases where a non-custodial parent is unemployed and has little or no income.  Even a person with little or no income can still have an obligation to pay child support.  This is because a parent’s child support obligation can be calculated based upon his or her imputed income, as opposed to actual income.  Imputed income is income that the court determines an individual should be making with a reasonable effort.

When child support is calculated a number of factors are used to determine each party’s obligation.  The parents’ income, the number of children, and insurance expenses are the major elements in determining one’s obligation.   It is not infrequent that a parent will manipulate the system in an attempt to lower his or her income which is aimed at reducing that parent’s child support obligation.  This is accomplished in a number of ways.  People that own their own business have found numerous ways to receive what would otherwise be income through creative accounting.  One way that the court system counter’s this is through the use of imputed income.  Sometimes this involves imputing minimum wage.  Other times, it is much more complicated and a vocational evaluator may be used.  

Although unemployment can no doubt affect one’s income adversely, it may not necessarily affect his or her child support obligation.  The courts do not always use imputed income to determine one’s child support obligation.  Most situations where it is used involve a parent that is unemployed or underemployed voluntarily.  In my practice, I have primarily seen imputed income used where a parent is unemployed and the court will impute minimum wage.  There are situations in which much higher income has been attempted to be imputed.  In one divorce case with no children that I handled, a Wife of an attorney, requested a vocational evaluation to determine the attorney’s true earning capabilities.  A court will usually inquire as to why a parent is unemployed or underemployed and whether or not there is justification for it.  A case in which unemployment is caused by an accidental injury would be a likely example of one that may be justifiable.  A layoff or company downsizing could also account for why an Obligor is unemployed.  Trying to prove that someone is underemployed can be difficult and expensive.  One has to prove that there is work available and that the Obligor turned it down.  Most of the cases I have handled involving the Dept. of Revenue are examples of situations where it is impractical or not economically feasible for the Dept. of Revenue to pay to have a vocational evaluation.  One example of a recent case I came across where there is little doubt that a father has a legitimate excuse (arguably) for not working is where a father must stay home to care for a young child with Cerebral Palsy. 

Florida requires parents who are divorcing or are subject to a paternity action to have a parenting plan in place.  A parenting plan can be agreed to or simply entered by the court.  However, once the plan is entered into the court as an order, it is enforceable through the court system.  Violations of parenting plans can be insignificant, or they can lead to great interference with the rights of a parent and a child.

In Florida, timesharing is taken into account in calculating child support for a parent that exercises at least twenty percent of the overnights with a child.  Florida’s child support guidelines specifically account for such.  However, not every parent takes advantage of all of the overnights that they are awarded.  Normally, you cannot retroactively adjust child support.  However, failure for a parent to exercise substantial timesharing can have a serious economic impact on that parent, as the Florida Statutes authorize retroactive adjustments.

A parent’s failure to regularly exercise the time-sharing schedule set forth in the parenting plan, a court-ordered time-sharing schedule, or a time-sharing arrangement exercised by agreement of the parties not caused by the other parent which resulted in the adjustment of the amount of child support pursuant to subparagraph (a)10. or paragraph (b) shall be deemed a substantial change of circumstances for purposes of modifying the child support award. A modification pursuant to this paragraph is retroactive to the date the noncustodial parent first failed to regularly exercise the court-ordered or agreed time-sharing schedule. F.S. 61.30(11)(C). 

Child support is essentially a payment from the higher income parent to the lower income parent.  Child support and timesharing have an interesting relationship.  The law values the child and parent relationship.  A parent’s right to timesharing is not dependent upon being current in child support.  It is a frequent mistake among individuals to assume that timesharing can be denied if an Obligor parent fails to keep up with his or her child support.  Such has no such relationship to Florida law.

Another misconception is that child support must go to the child specifically.  However, it is a general purpose reimbursement which covers the cost of living in a household with children.  The amount of child support paid by each parent is dependent upon the amount the Florida child support guidelines determine.  The number of overnights the child or children spend with each parent is one of the factors used to decide a parent’s child support under Florida’s guidelines.  There is a chart that is published within the Florida Statutes that shows the amount of child support a child is entitled to.

Florida law requires that generally, where there are minor children then child support should be paid.  The principle behind this general rule is that entitlement to support belongs to the children and parents cannot decide not to pay support.  There are situations in which a parent does not have a child support obligation.  In Florida, this must either be because the amount of support owed is very minimal, as determined by the guidelines, or the specific reasons must be enumerated in the child support order.  The law allows up to a 5% deviation from the guidelines without further enumeration.  Florida has a form known as a Child Support Guideline Worksheet which is required to be filed in every divorce and paternity case where child support is determined.  The guidelines account for some of the specific costs of supporting a child, such as health insurance and uncovered medical expenses.  As long as a parent is awarded at least 20 percent of the overnights, overnights are a specific factor used to determine a parent’s support.  Items like rent, electricity, water, and food are essential items that are not specifically accounted for in the guidelines.  Other items that are specifically accounted for under the guidelines are taxes, daycare, and medical costs.

Unwed fathers may believe that it is unlikely or impossible to gain custody of their child when they were never married to the child’s mother.  Fathers with this attitude should think again, as the courts and society have realized that fathers can be every bit as responsible as mothers in rearing a child.  The court system may still have a few vestiges of what was known as “The tender years doctrine”.  Such is the idea that a young child should primarily be cared for by their mother.  However, most judges today that I have encountered no longer display any indication that this philosophy still exists.  The reality is that a caring father can be every bit as nurturing and responsible as a caring mother.

In Florida, paternity is established by filing an action in the Circuit Court.  The action is known as a paternity action.  The petition should be titled a Petition for Paternity and Related Relief or a similar name.  There is no legal presumption for or against a father obtaining what used to be called primary custody.  The court’s have changed from using the term custody to using the term timesharing.  It is supposed to promote the idea of the children being shared between parents.  I personally do not believe that much has changed because of the change in terminology.  That said, the law has changed regarding child support in that the non primary residential parent (the parent that has minority timesharing) can now receive a reduction in child support if he or she has the child for at least 20 percent of the overnights.  The prior rule required the non majority parent to exercise at least 40 percent of the overnights to get a reduction in child support.

In a paternity suit, a father attempting to obtain timesharing must request either shared parental responsibility or sole parental responsibility.  Sole parental responsibility is exactly what it sounds like and so is shared parental responsibility.  Even people with serious criminal histories frequently are awarded shared parental responsibility.  Florida has enumerated the factors that it considers important and that a judge must take into account in deciding custody issues between parents.  They can be found in Chapter 61 of the Florida Statutes.  In short, they equate to the best interests of the child.

Can Child Custody be modified because of COVID-19?

What temporary and permanent changes are inevitable?

With the outbreak of the Coronavirus, life has changed.  Some changes are temporary, and some may be permanent.  Almost every American’s travel plans have been affected by limitations placed on travel, shopping, and many other aspects of our lives.  In addition to all of life’s other complications, many of us share custody of children.  I have been practicing in the area of family law in North Florida for over 17 years.  A thorough parenting plan will account for numerous contingencies.  To date, I have yet to see a parenting plan that addresses custodial complications parents are likely to experience during the current pandemic.  I find that the two most litigated issues in family law are:

SHOULD CHILDREN BE PERMITTED TO TESTIFY IN A CUSTODY CASE?

One of the most common questions we get is if children can or should be allowed to testify in a divorce or child custody case. Self-represented litigants in Florida occasionally come to court with a child in anticipation that the child will testify for them.  However, there are specific prerequisites that must be followed under the Florida Family Law Rules of Procedure before a party is permitted to bring a child to court to testify. Often clients ask “At what age can my child testify in a Florida divorce case?’ Why maturity can be an issue, age itself is not the main factor use to determine if a child can testify in a divorce case.  It is not prudent for a party to bring a child to court unless authorized previously by court order.  Florida Family Law Rule of Procedure 12.407 applies to the testimony of children in Family Law Cases.  It reads as follows:

(a) Prohibition. Unless otherwise provided by law or another rule of procedure, children who are witnesses, potential witnesses, or related to a family law case, are prohibited from being deposed or brought to a deposition, from being Family Law Rules of Procedure August 28, 2019 99 subpoenaed to appear at any family law proceeding, or from attending any family law proceedings without prior order of the court based on good cause shown.

(b) Related Proceedings. In a family law proceeding held concurrently with a proceeding governed by the Florida Rules of Juvenile Procedure, the Florida Rules of Juvenile Procedure govern as to the child’s appearance in court.

(c) Uncontested Adoption. This rule does not apply to uncontested adoption proceedings.  Florida Family Rules of Procedure 12.407.

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In Florida, can a divorced or single parent move with or without their child?

If you have made arrangements to move with your child without being sure you are acting legally, think again.   The ramifications of relocating with your child without approval from the other parent or the court are potentially hazardous.  A Court could hold you in contempt of Court or make you move back to your old location with the children, or worse, give up custody to the other parent.

“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.

In Florida, divorces with children involved primarily focus on the parenting plan first.  The parenting plan determines numerous factors in raising your children and will be the document most referred to after the divorce is finalized.  It is important that the plan is tailored to you and your children and accounts for the best interest of the children.  Before filing for divorce, you should consider whether you would like to request one of the following:

  • Shared Parental Responsibility: Both parents confer and jointly make all major decisions affecting the welfare of the children, such as education, healthcare, etc.
  • Shared Parental Responsibility with Decision Making Authority: Both parents attempt to agree on major decisions, but one parent will have the ultimate decision-making authority.

In Simmonds v. Perkins, No. SC17-1963 (Fla. 2018), the Florida Supreme Court decided to take up the question of whether a biological father is entitled to rebut the common law presumption that the mother’s husband is the legal father of a child born to an intact marriage, where the mother or her husband object to allowing such rebuttal.  The Court held that the biological father may rebut the presumption of legitimacy when he has “manifested a substantial and continuing concern” for the welfare of the child.  The presumption of legitimacy may be overcome by a “clear and compelling reason based primarily on the child’s best interests.”

fatherThis case involved the child’s mother, Treneka Simmonds, and biological father, Connor Perkins, and their daughter.  When Perkins and Simmonds were together, Perkins was never told Simmonds was married to a man named Shaquan Ferguson.  When Perkins did find out Simmonds was married, she told him she was married for “immigration purposes” and was going to get a divorce.  Perkins was there when the child was born, taken the child to the doctor, enrolled the child in daycare, and even had sole physical custody for awhile.  The child called him “daddy.”  Perkins’ mother is also known as her grandmother.

Perkins decided to file a petition to determine paternity, timesharing, and child support.  Simmonds moved to dismiss the action based on it being barred by the common law presumption of legitimacy because Simmonds was married to Ferguson.  Perkins then added Ferguson as an additional party, amended his petition to seek disestablishment of Ferguson’s paternity, and alleged it would be in the child’s best interests for him to be recognized as her legal father.  Ferguson also moved to dismiss under common law.  The trial court dismissed Perkins’ petition because of previous Fourth District precedent stating that the putative father cannot seek paternity when the child was born in an intact marriage and the married woman and her husband object.

In 2016, Angelina Jolie filed for divorce from Brad Pitt after he got into an altercation with his son Maddox on a plane that resulted in an FBI investigation.  You may have heard about the custody battle with their six children that has ensued.  Recently, a judge apparently ordered “new restrictions” regarding Angelina’s participation in how Brad interacts with the children.

Child custodyThe Judge wrote, “[The children] not having a relationship with their father is harmful to them.  It is critical that each of them have a healthy and strong relationship with their father and mother.”  The Judge also state, “If the minor children remain closed down to their father and depending on the circumstances surrounding this condition, it may result in a reduction of the time they spend with [Jolie] and may result in the Court ordering primary physical custody to [Pitt].”  The Judge created a visitation schedule for Brad to see his children over the summer with the children continuing to receive therapy.

It seems the Judge is trying to prevent parental alienation.  Parental alienation is the psychological manipulation of a child into showing unwarranted fear, disrespect or hostility towards a parent and/or other family members.  Check out 9 warning signs that parental alienation might be present here.

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