Articles Posted in Parental Rights

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.

Adultery can certainly be a factor in a divorce.  However, adultery is only relevant for limited purposes.  Florida is sometimes referred to as a no-fault divorce state.  This only means that proving fault is not required to obtain a divorce.  There are only two reasons that are acceptable in Florida to obtain a divorce.  The most common reason is that the parties have irreconcilable differences.  The other is that a spouse is mentally incompetent.

A Court can consider adultery from either spouse, as well as the circumstances involved in making a determination concerning alimony.  A considerable amount of discretion is placed in a judge’s hands in determining if alimony should be paid and if so, how much should be paid.  F.S. 61.13(3)(f).

Although technically, adultery is not a factor that the court considers in making custody (now know as timesharing) decisions, adultery can be a factor regarding custody issues.  The Florida Statutes do allow the court to consider the moral fitness of a party in making a custody determination.  F.S. 61.13(3)(f).  If a parent can show the court that a parent’s adultery will affect the child, the trier of the fact can consider whether a party’s adultery impacts the best interest of the child or children.  In the case Jacoby v. Jacoby, the court determined that the mere possibility of adultery having a negative impact regarding timesharing is not sufficient to make the adultery a consideration.  Packard v. Packard, 697 So.2d 1292 (1st DCA 1997).  The important dynamic is whether a party’s adultery will have a direct effect on the welfare of a child.  Dinkel v. Dinkel, 322 So.2d (Fla. 1975).

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.

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.

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)

In 2009, a 14 year old girl was raped in Massachusetts and became pregnant.  Her attacker, Jaime Melendez, pled guilty to rape charges and was sentenced to 16 years probation.  He was also brought into family court and ordered to pay $110 per week in child support, according to a paper published by the American Bar Association.  It was bad enough that the sentence was only 16 years probation.  Later, Melendez sued the victim in order to have visitation with the victim’s child since his parental rights were still intact.  Melendez felt that if he was going to pay child support, he should be allowed to spend time with the child.

parental rightsMany states have laws that restrict the rights of a father that produces children as a result of a sexual assault.  Of these states, nearly none terminate the rights of the rapist outright without the victim making some sort of effort.  Parental Rights termination is something that should be considered carefully, but this is probably an instance where termination of parental rights should be simple and easy to accomplish.

There is a list of things under Florida law that can result in termination of parental rights.  Chapter 39 authorizes the termination of parental rights if clear and convincing evidence shows that the child was conceived as a result of a sexual battery.  See F.S. 39.806.  According to Florida law, “[i]t is presumed that termination of parental rights is in the best interest of the child if the child was conceived as a result of the unlawful sexual battery.”  A conviction, or a guilty plea being entered, is enough proof to satisfy the statute.  Having to share parental rights with a person that violated you, only serves to continue the agony of the victim.  At the Law Office of David M. Goldman, PLLC, we have experienced Jacksonville family lawyers that can help you terminate the parental rights of your attacker, and help reclaim your peace of mind.

co-parentingMuch that happens in life depends on the attitude that we have about things. Co-parenting and raising children properly after divorce or a relationship with the other parent has ended is no exception.   Having the right attitude is key. I’ll share a brief example using my son.

My 15 year old is genuinely a good kid. He’s silly and acts very much like a teenager, but inexplicably woven into the fabric of who he is lies a level of maturity that is beyond his age.   My son loves football and plays running back. A few weeks ago, I don’t remember the reason why, but he missed practice twice during the week, including the last day of practice before the game on the following Saturday. As a result, the coach put him on the line to block rather than allowing him to play his normal position. Now, he was upset about it, but you would never have known by watching him block with all his might, which is what he did all game long. He played his part for the day, even though it wasn’t his normal position or one he was happy with. What mattered most to him was winning. He and his teammates still had a common goal, no matter what position he played that day.

The coach commended him after the game for having the heart that he does, and also explained why he did what he had done by putting my son on the offensive line. The following week, he was back to scoring touchdowns as running back. (His team won the championship in their division by the way.) Way too often parents lose sight of the overall goal—happy, healthy children. They are petty and resentful, and don’t work together to ensure the success of their children. As co-parents, you must see the other parent as a teammate. You cannot continue to hold grudges and view them as an enemy. Having that attitude will hinder the team’s performance and make winning nearly impossible.

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

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.

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