Articles Posted in Domestic Violence

What is a Pick-Up Order?

In Florida, a pickup order that is issued may be issued to secure the physical custody of a child from one party and then deliver that child to another party. Most courts disfavor pickup orders for children, as it is thought that it may be harmful for children to be exposed to this procedure.  The author believes that it can be tramatic for a child to experience the police enforcing a change of custody when it is unexpected and is apparently stressful on the parent that must give up custody.  Most judges will use this type of an order sparingly when other attempts to correct custody disputes fails.  If a pickup order is properly worded, the police/sheriff should enforce a child custody/pickup order.  The language that the author believes is essential in his experience dictates that the order shall be enforced by all sheriff’s of the state.  An order without this language or its equivalent generally will not be enforced by the police.

What is a Foreign Pick-Up Order?

The question as to whether or not an individual needs an attorney to divorce in Florida is simple if we review the question literally.  You can get a divorce in Florida without an attorney.  However, it may be unwise to attempt to be divorced without an attorney.

Why Should I Use an Attorney?

The author believes that an attorney is essential if you are attempting to obtain a divorce.  This may sound like a self serving statement, but the author thinks there are numerous reasons that one should use an attorney to guide them through the process.  The author feels that having an attorney keeps otherwise Pro Se (self represented) clients forging ahead and not getting side tracked by discovery issues and other procedural problems regularly encountered and routinely dealt with by attorneys.

The marital home is frequently the largest asset between the parties to be divided in a divorce. When and how the marital home was acquired will be a major factor in determining who gets the marital home temporarily and permanently.

What is Exclusive Use and Possession?

Exclusive use and possession refers to one party receiving permission to use the home for their own purposes. Conditions are frequently provided for, as well. A frequent condition to receiving exclusive use and possession of a home is typically connected with paying the mortgage or other household bills.  This sometimes occurs initially after holding a temporary needs hearing or a domestic violence injunction hearing.  The most expedient, but not necessarily recommended way that a spouse can obtain exclusive use and possession of a home is through a domestic violence case. Using a domestic violence case to obtain exclusive use and possession should only be pursued when it involves a Petitioner that has been the victim of domestic violence. In other words, a petition for injunction should only be filed when actually necessary to stop or prevent violence. Where domestic violence is not an issue, a temporary needs hearing would be the best vehicle to obtain a temporary order to decide who stays in the home temporarily. The author has seen a number of occasions where both parties shared the home while they waited for a final hearing because neither party had a good option to leave.  This is not recommended, as it is natural for hostility to build between two partis going through a divorce.

What is a Statute of Limitations?

The term “Statute of Limitations” refers to a law that limits the period for which one may file a lawsuit.  This time period will typically vary by state and the type of suit that is being filed. For instance, the period of time for filing suit for a wrongful death claim may be different from the period of time one has to file for a trespass suit.  Federal law normally controls Statute of Limitations Periods for cases decided based upon federal law.

How Far Back Can One Be Assessed in Determining Child Support?

Your domicile is the place upon which an individual has voluntarily decided to reside permanently.  In the ordinary sense, a persons domicile is the place where he lives and where he has his or her home.  However, the legal definition is more specific.  The plan in which a person has his or her permanent home and principal establishment upon which he intends to return whenever he is absent would fit the legal definition of domicile.

Why is it Important to Determine Domicile?

The domicile that one chooses has legal consequences. One’s domicile determines which state can probate a will.  It also determines which state can collect estate taxes when someone dies.  One’s domicile establishes where an individual may exercise certain legal rights and privileges.  Where one has the privilege to vote is determined by domicile.

What is Domestic Violence?

Under the Florida Statutes, Domestic Violence is defines as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offenses resulting in physical injury or death of one family or household member by another family or household member.” F.S. 741.28.

Is Domestic Violence Criminal?

Few people want to accept responsibility for a lifelong obligation that they were not responsible for.  There is more than one way under Florida law to create a parental relationship with a child.  Not all relationships in today’s society follow the model that involved a two parent family whereby the husband was the bread winner and the wife was a stay at home mother.  Today, the norm has changed, and single parent households are much more commonplace than they were traditionally. 

There are a number of ways that paternity can be established.  When a woman is married and she becomes pregnant, there is a legal presumption that the husband is the father.  This is true even where the husband could not physically have impregnated the wife.  Section 742.10 of the Florida Statutes covers all of the ways that paternity of a child can be established.  In short, paternity can be established when a married woman has a child, by consent, by court order, or by the legal father signing the birth certificate and notarized documents admitting paternity. 

When a woman has a child out of wedlock and applies for governmental assistance, she may find that the agency or agencies she is applying through will require her to participate in a legal proceeding to establish the paternity of the child.  In part, this is because the government wants to make the father responsible for supporting the child.  Both parents are responsible for their child and a father or mother can be required to support their child until they reach majority.  In some rare cases, they may have legal responsibility beyond the age of majority.  The author of this article has handled numerous child support cases over the last 16 years and he has seen some people have their lives wrecked after they were required to pay child support (an Obligor).  When an Obligor discovers that the child they are supporting is not theirs, disestablishing paternity may be an option for them.  Although disestablishing paternity will terminate an ongoing support obligation, it will not extinguish any child support obligation which has accrued.  Even when disestablishing paternity is successful, an otherwise Obligor may still have to pay a large arrearage. 

It is important to know your rights following a divorce.  The final judgment of dissolution and the parenting plan determine the legal playing field for the future.  However, most issues are dynamic.  Children get older and their schools change and sometimes their relationship with parents change.  Incomes change, which can directly impact child support and people sometimes desire to relocate where child custody can be an issue.  There are a myriad of circumstances that should be re-evaluated following divorce. 

In Florida, the standard used to file an action to modify a final judgment is that a substantial change in circumstances occurred that was not anticipated at the time of entry of the final judgment.  It does not always make practical sense to file an action to modify a final judgment just because a party can do so.  The relationship that a party has with a former spouse is important, especially where children are involved.  Every time a party considers filing a supplemental petition (this is the instrument filed requesting modification of a final judgment), one should consider how such will impact their relationship with their former spouse and other legal consequences.  I frequently have parties coming to me that wish to file for a modification.  I typically find that they have only evaluated a part of the effect of seeking a modification.  For this reason, it is imperative that one review the ramifications of an action for modification with an experienced family law attorney.

Although a divorce is designed to deal with all of the legal issues concerning dissolution, the reality is that there are sometimes issues that are left unresolved.  On occasion there are assets that neither party put on their financial affidavits that require addressing post dissolution.  One example of such an issue involved a divorce of a long time married couple in which neither party included the child’s prepaid college fund account on their financial affidavit.  The fund was cashed out by the Father/Former Husband after the divorce without permission from the court or the Mother/Former Wife.  Since the asset was not listed on either party’s financial affidavit, the judge considered the asset marital property and ordered the Former Husband to pay back one half of the funds post dissolution.

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.

National headlines were made when the wife of former U.S. Open champion Lucas Glover was arrested for domestic violence battery and resisting arrest in St. Johns County, Florida on May 13, 2018.  The altercation allegedly occurred after Lucas Glover missed the 54-hole cut at The Players Championship.  Lucas Glover told authorities that his wife gets violent every time he does not play well in a major PGA Tournament.  There were allegedly visible injuries on Lucas Glover and his mother.  Krista Glover faces a court date on May 31, 2018 and was released on a $2,500 bond.

The Glovers children were present at the home when the incident happened.  Krista Glover had been drinking throughout the day and started yelling profane insults at Lucas Glover in front of their children and his mother.  Lucas Glover told her to stop the argument while in front of the children.  The children were in bed when the physical altercation happened, and it is unknown if they observed any of the altercation or the subsequent arrest afterwards where Krista Glover allegedly resisted arrest. The couple was married in 2012 and have two children, a two-year-old son and a 5-year-old daughter.

The consequences of arguments in front of the children can be serious to both the aggressor and the victim.  The Florida Department of Children and Families may become involved if they receive an abuse report to investigate regarding the situation, which could even lead to possible removal of the children from both parties if it is alleged Lucas Glover failed to protect the children from multiple instances.  Also, it is key that alcohol was involved.  Drinking is perfectly legal and acceptable; as long as there is not a demonstrable effect on the children.  If there is a demonstrable effect on the children, alcohol treatment would most likely be ordered by a dependency court.

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