Articles Posted in Parental Rights

Mediation is an alternative dispute resolution that is mandatory in a Florida divorce, paternity, or modification case, but many people do not see the process as the benefit it is.  During mediation, the two parties will meet with a mediator who is an unbiased and uninterested person in the case.  The mediator will try and help the parties resolve all disputes related to the family law case.  If an agreement is reached, it is drafted and submitted to the Court for approval so the case can be closed.  While the process is straightforward, there are still many myths related to the process.  Your Jacksonville family attorney can assist you in understanding the mediation process.  Below are the biggest myths about family law mediation in Florida, and the truth behind them.

The Mediator Will Make All the Decisions

This is simply untrue.  Mediators do not make any of the decisions when they meet with parties going through a divorce, paternity, or modification case.  They cannot force either party to do, or not do, anything.  Instead, they are only there to help you and facilitate you and your spouse, ex-spouse, or co-parent to reach an agreement.  If you cannot reach an agreement and your case requires litigation, it is the Judge that will make all the decisions.  Your Jacksonville family attorney is here to assist you in mediation and to represent you in any litigation should you not reach agreement.

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.

Do You Know Your Rights in Child Support Court?

In a child support case, one cannot be incarcerated if they do not have the present ability to pay.  Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985).  Although this case is binding on Florida courts, the author believes that self represented individuals do not get the benefit of legal protections against incarceration or cancellation of a driver’s license or professional license.  The author believes that one reason for this is because laymen tend to believe that an administrative agency must take a neutral position (similar to a judge).  This is not the case when it comes to collection of child support by the Florida Department of Revenue.  The author, in the next paragraph is going to summarize the case of Bowen v. Bowen to give readers a clearer understanding of child support issues when the Florida Department of Revenue is involved.

The Case of Bowen v. Bowen.

This is a question that is often asked by custodial parents.  If you live in Florida the answer is yes.  Florida has a relocation statute, and it is found at §61.13001 in the Florida Statutes.  If you have a minor child and you are divorced or no longer in a relationship with the other parent, you cannot move more than 50 miles from the current residence without obtaining permission from the other parent or consent from the Court.  This condition applies to both the custodial parent and the non-custodial parent.  Your Jacksonville family attorney can assist you in determining how you can comply with the relocation statute to enable you to move.

The statute requires that unless there is an agreement between the parties, a parent or other person with time-sharing rights seeking relocation must file a petition to relocate and serve it upon the other parent, and every other person entitled to access to or time-sharing with the child.  The pleadings must meet the following requirements:

a)  The petition to relocate must be signed under oath or affirmation under penalty of perjury and include:

This Jacksonville family law attorney’s office represents parents seeking shared parental responsibility and sole parental responsibility.  In all child custody matters, the parties or the Court must determine what type of parental responsibility the parties will have.  The two types of parental responsibility are Shared Parental Responsibility and Sole Parental Responsibility.  It’s important that all parents understand the difference between the two types.  Shared Parental Responsibility means that the parties will confer with each other regarding all matters concerning the minor child that they share.  This includes such things as educational decisions, residence decisions, religious decisions, and medical decisions.  If sole parental responsibility is granted to one parent, that parent does not have to confer with the other parent about anything.  Check with your Jacksonville family law attorney about this issue before making a decision.

Most family law Courts believe that the parents should share these types of decisions and they order shared parental responsibility unless there is some good reason not to have the parents share in the decision making.  Florida statute 61.13(2)(e)(2) allows the Court to grant sole parental responsibility if the “court determines that shared parental responsibility would be detrimental to the child, it may order sole parental responsibility and make such arrangements for time-sharing as specified in the parenting plan as will best protect the child or abused spouse from further harm”.  An example of a good reason not to order shared parental responsibility in a case would be if one of the parents has exhibited poor decision making regarding the child in the past.  Some examples of poor decision-making would-be things like 1) failing to register your child for school or home schooling, 2) failure to provide appropriate caregivers for when you are not present and able to care for the child yourself, or 3) failure to get medical treatment for a child when it needs medical care.  Some more serious reasons for ordering sole parental responsibility are if there is a history of domestic violence, or a parent is incarcerated.  In those instances, there is a rebuttable presumption of unfitness that will arise that shifts the burden of proof to the defending party to show they are not unfit.  There may be other practical reasons to give one parent decision making powers over the other parent in certain areas.   An example would be if one of the parents is not educated and is unable to assist the child with their education, the Court might give one parent ultimate decision making in the educational area.  Contact your Jacksonville family law attorney to advocate on your behalf what is in the best interest of your child.

When reaching an agreement regarding parental responsibility, the parent should be careful not to relinquish their rights regarding this issue as it is very difficult to change the parental responsibility division once it is agreed upon or ordered by the Court.  To change anything regarding the minor children once it is established by the Court, you must show that there has been a substantial change in circumstances that makes it detrimental to the welfare of the child not to change the parental responsibility.  This is a very high burden of proof that lies somewhere between the preponderance of the evidence (or more than 50%) and beyond a reasonable doubt (or 99%).  As always, before attempting to maneuver through the legal system alone, it is advisable to consult with a family law attorney first.  Your Jacksonville family law attorney is here to advise you, guide you and advocate for you.

Why Timesharing is Important?

A dissolution can be a very emotional experience for some.  This is especially true when a divorce involves children.  The current rules require that when parties have children, a parenting plan must be developed.  The parenting plan details parental responsibility, timesharing (formally referred to as visitation), and child support.  It may also include additional details unique to a particular child or children, or it may address a unique family situation.  Although the Court system attempts to equalize timesharing between parents, this is not always possible.  Parents may work or live so far apart that a 50% timesharing schedule would be impractical.

What Are the Different Types of Timesharing?

Can I modify time-sharing for my children in Florida?

In Florida, it is the public policy of the 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. We live in a pretty mobile society and oftentimes when divorce or separation occurs one of the parents is in another state or even another country. When that occurs, it is important that Jacksonville parents keep the child’s best interest at the forefront of their minds, taking that into consideration in fostering the parent-child relationship with the non-custodial parent. The parents and your Jacksonville divorce attorney need to get creative in crafting a Parenting Plan that will both work for the parents and foster the relationship between the child and the non-custodial parent.

How to Communicate better with long-distance time-sharing in Florida.

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. 

There may be some negative stereotypes that are associated with Prenuptial Agreements.  Typically, neither party wants to detract from the blissful atmosphere typical prior to a wedding.  However, a Prenuptial Agreement can also help preserve a marriage.  This is because there is certainty as to how things will terminate should the marriage not last.

The thought alone of creating a prenuptial agreement can cast a negative light upon a wedding.  To some, the contemplation of a prenuptial places a negative light upon wedding preparations and the future of the relationship.  Having to plan for divorce is an admission that a relationship is not permanent.  That said, it is far better to deal with the details of how a relationship is going to end (should it end) while a couple is reasonable and loving compared with being negatively affected by the hostilities and uncertainties of divorce.

In Florida, there are several types of alimony that courts may consider.  There are factors that affect the amount of alimony that can be provided for such as, length of a marriage, the equality of earning ability between the spouses, and the assets that a court must divide.  Florida law creates a rebuttable presumption against permanent alimony when a marriage is 7 years or less, which under the Florida Statutes is defined as a short term marriage.  However, there is a rebuttable presumption for permanent alimony awards in marriages that are long term (greater than 17 years).  Moderate term marriages are defined as between 7 and 17 years and no presumption exists.

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.

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