Recent Blog Posts

Limitations on Timesharing are Rare and Usually Temporary

Kim Byrd — Mon, 14 May 2012 20:30:00 GMT

Are you in involved in a divorce or paternity action and feel that the other parent of your children should not be able to see your children because of the other parent’s bad behavior? Maybe the other parent smokes marijuana or drinks too much. Maybe they are addicted to pornography or gambling. Such behaviors, while relevant to the court’s determination of timesharing, don’t always result in the denial of timesharing by the other parent.

In order for the family law court to limit timesharing based on a parent’s conduct, the court must determine that the conduct is detrimental to the child. The parent asking the court to limit the other parent’s timesharing must present competent and substantial evidence to the court on this issue. This evidence will most likely have to consist of something more than the testimony of the parent seeking to have the other parent’s timesharing limited.

Even if the court determines that the conduct is detrimental to the children, it is unlikely that the court will deny timesharing altogether. Rather the court may order that the other parent’s timesharing be supervised until the other parent shows the court that they have changed their behavior so that it is no longer detrimental to the children.

Best Interest Factor #2: Dividing Parental Responsibilities

Damien McKinney — Thu, 10 May 2012 18:40:00 GMT

When judges in Florida family law cases make a decision about your children and the timesharing schedule for each parent they use the “best interest of the child” standard that is set forth in Florida Statutes section 61.13. There are twenty different factors that the Florida legislature has determined the courts must review and analyze before fashioning a parenting plan and time sharing schedule for the parents. This article will address the second factor. The second factor listed in the statute is as follows:

"The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties."

The court wants to know how the parental responsibilities will be divided after the case is over. For example, who will be responsible for waking the children up in the morning to get them ready? Who will drive them to school in the morning and who will pick them up? Who will help the children with homework and school tasks? Which parent will take the children to and from extracurricular activities and the like. The court is also interested in knowing if any of these responsibilities will be delegated to third parties. In my experience, the court wants to see that the parents are handling the majority of the parental responsibilities, as opposed to delegating those responsibilities to third parties. Third parties, under the statute, include new spouses or family members. Analyzing the twenty factors under this statute and determining what facts in your case apply can be a complex and time intensive matter. Contact your expert family law attorney for a more in depth analysis of how the facts of your case can be analyzed and applied to this factor.

Hearsay in Family Court

Joanna Chapman — Mon, 07 May 2012 18:50:00 GMT

In family law cases, a party may wish to introduce evidence in court about their spouse based on something they didn’t personally witness or can attest to. Information a party may have about their spouse sometimes comes from a friend, family member, or other third party. Florida statutes, Chapter 90, outlines the rule of evidence that regulates what type of information can permissibly be used during trial or a hearing. Hearsay is an out of court statement which is offered for the truth of the matter asserted and is generally not allowed to be used at a trial or hearing. For example, a teacher may have told you something they observed about your child at school. If you tried to testify about that statement at trial, it would be excluded as hearsay. On the other hand, if the teacher is called as a witness and testifies for themself, they are free to speak about their observations. Also keep in mind that you can almost always testify to something you have first-hand knowledge of or “personal knowledge” as defined by law.

An experienced Florida divorce attorney will have to analyze whether or not a written or oral statement is hearsay or whether the evidence falls under an exception listed in Florida Statutes 90.803. One such exception that offers a great tool for trial attorneys is the Admission by a Party opponent, which generally is any written or oral statement made by the adverse party when it is offered against the adverse party. Once this type of oral or written statement has been offered into evidence, it will be up to the judge to determine the proper weight, or credibility, to give the statement.

The hearsay rule under the Florida Rules of Evidence can appear to be prohibitive when going through a divorce, however, an experienced family law trial attorney who knows exactly how they apply and when exceptions apply can use the hearsay rule as a powerful tool.

Transferring Timesharing in Military Divorces

Damien McKinney — Thu, 03 May 2012 18:45:00 GMT

Many of our clients are stationed at the local military base and have questions about what happens to their time sharing and custody rights if they get deployed to a war zone or other location. Florida has enacted a statute that will allow the military individual to assign their time sharing to another person while deployed. If the parent is deployed on orders that last more than 90 consecutive days, the parent may designate a person to have time sharing on that parent's behalf. The designation is limited to a family member, a stepparent or a relative of the child by marriage. For example, you could potentially designate your new wife or sister to have time sharing on your behalf when you are deployed for more than 90 days. The other parent may object, but has very limited grounds for objecting. The deploying parent must also show that his or her ability to comply with the time sharing will be materially affected as a result of the deployment. The statute sets forth several procedural requirements the deploying parent must meet in order to assign their visitation to another family member. Contact your expert family law attorney in order to discuss the steps you must take to assure that your time sharing can be assigned to another family member while you are away serving our country.

Tampa DP Registry is Official

Kim Byrd — Mon, 30 Apr 2012 18:40:00 GMT

It is official! On Friday, April 13, 2012, a lucky day for domestic partners in Tampa, Mayor Bob Buckhorn signed the city ordinance instituting a Domestic Partner Registry. Domestic partners who register will be entitled to make health care decisions and funeral arrangements for their domestic partners, be entitled to notification by EMS and law enforcement if their partner is involved in an accident, and a number of other benefits already provided to same sex families. Domestic partnership registry can also provide the documentation of domestic partnership that is required by employer provided domestic partnership health insurance. Same sex and opposite sex couples can register as domestic partners. Tampa follows Broward County, Miami-Dade County, Palm Beach County, and the cities of Gainesville, Key West, Miami Beach, Orlando, and West Palm Beach in the institution of a domestic partner registry. Orange County and the cities St. Petersburg and Gulfport are each in the process of creating registries. Domestic partners that register in these other municipalities will also have to register in the city of Tampa to be entitled to the DP benefits. Same sex couples with marriages or civil unions from other states will also have to register. The benefits only apply within the city limits of Tampa. Mayor Buckhorn expressed his hope that Hillsborough County officials would extend the benefits to the entire county.

Islamic Custom at a Crossroads with Florida law

Joanna Chapman — Thu, 26 Apr 2012 18:35:00 GMT

A recent Bay News 9 article brought to light an Islamic custom known as a “Sadaq.” Generally speaking, this tradition is part of the Islamic marriage, often in arranged marriages, and is similar to the concept of a dowry. The Sadaq, or sometimes referred to as a “Mahr,” provides for an amount of money to be paid from a groom to his bride for her to spend as she would like.

In a local divorce case pending in Pinellas County, the Husband is expected to argue in Court that a Sadaq of $20,000 is all the Wife should receive due to their Islamic law marriage and contract. The issue for the Court will be to determine what to do when a marriage and contract entered into under Islamic law is at odds with Florida family law’s provision for Equitable Distribution of marital assets and liabilities acquired during the marriage. Does this type of contract preclude the Wife for asserting her rights under Florida law? The court is expected to rule on these issues in June of this year.

Deion Sanders Divorce Turns Ugly

Christian Givens — Wed, 25 Apr 2012 16:00:00 GMT

Deion Sanders' divorce from his wife, Pilar, turned hostile earlier this week. Deion tweeted that his children, "Just witnessed their mother and a friend jump me in my room. She's going to jail (and) I'm pressing charges!" A photo of Deion and his two children filling out police reports was attached to the tweet. The Sanders still reside in the same home in Texas, even though their family law case has ben filed for months. Apparently, Mrs. Sanders was arrested at the scene, and Mr. Sanders was later charged with simple assault as well.

Each state's divorce laws are different. In Florida family law cases that deal with custody and timesharing, the court must look to Florida Statutes, Chapter 61.13 to determine the amount of time each parent will spend with the children. Both Mr. and Mrs. Sanders would likely have run afould of many of the subfactors in chapter 61.13. However, what caught my attention was Deion including the photo fo his children on the internet filling out the sworn criminal complaint against their mother.

If this case were in Florida, the posting of such a photo would run afoul of Florida Statutes, Chapter 61.13(r), which states, "The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic mediat related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.

Surely, there are always two sides to every story, but actively involving children in your divorce case is never a good idea.

Best Interest Factor #1: Encouraging a Relationship with the Child and Other Parent

Damien McKinney — Mon, 23 Apr 2012 18:30:00 GMT

When family law judges in Florida make a decision about your children and the time sharing schedule for each parent they use the “best interest of the child” standard that is set forth in Florida Statutes, Section 61.13. There are twenty different factors that the Florida legislature has determined the courts must review and analyze before fashioning a parenting plan and time sharing schedule for the parents. This article will address the first factor. The First factor listed in the statute is as follows:

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.

What does this mean? How does this affect my case? The judge is going to want to see demonstrated evidence and facts that you have done your best to facilitate a relationship with the children and the other parent. This might not be easy and you might not want to do this. Despite the huge emotional conflict you might be going through, you still must to do your best to facilitate and encourage a relationship with the other parent. For example, help the children create birthday or holiday gifts for the other parent. E-mail the other parent pictures of the children on frequent occasions. Allow the children to have regular and meaningful telephone contact with the other parent. Examples of behavior that show you believe the children benefit from having a meaningful relationship with BOTH parents will help the court look favorably upon you in relation to this factor.

Additionally, evidence that you are honoring the time sharing schedule and not withholding the children from the other parent is also something the court is looking for when analyzing this factor. Finally, the judge is going to want to see that you are flexible and reasonable when changes to the schedule are required. This doesn’t mean just when changes to YOUR schedule are required, but also when changes to the other parents schedule are necessary and even when changes to the children’s schedule require flexibility. It helps to be flexible and not rigidly adhere to the written time sharing schedule. This factor may seem like common sense to you, but unfortunately many individuals get caught up and blinded by the emotional side effects of going through a divorce and fail to ask themselves whether their behavior is truly in the children’s best interest or simply their own best interest. Contact your expert family law attorney for a more in depth analysis of how the facts of your case can be analyzed and applied to this factor.

England and Wales May Catch Up with the New World

Christian Givens — Wed, 28 Mar 2012 20:20:00 GMT

A recent Guardian.com article quoted Sir Nicholas Wall, president of the high court's family division, stating that the time had come to move to "no fault divorces" in England and Wales. Divorce cases in Florida have been "no fault" for years. One of the advantages to such a system is that the parties in a divorce case do not have to spend a great deal of time pointing fingers at the other, and putting each other down. Jurisdictions that require a determination of fault to grant a divorce add one more thing to the already large list of items that need to be negotiated in a divorce case. Thankfully, the Florida legislature has already removed determining who is at fault from family law cases.

City of Tampa Moves to Adopt Domestic Partnership Registry

Kim Byrd — Fri, 23 Mar 2012 14:40:00 GMT

The Tampa City Council recently voted unanimously to move forward on the adoption of a Domestic Partnership Registry. When passed the Domestic Partnership Registry would allow domestic partners who reside within the city limits and register to have automatic rights to visit their partners in the hospital and to make health care decisions for the incapacitated partner.

These rights are particular helpful to same sex domestic partners who are unable to secure these rights through marriage. However, surveys have shown that nearly 9 out of every 10 domestic partnerships involve people of the opposite sex who choose not to marry for a variety of reasons. These domestic partners don’t even have the right to be notified or informed if their partner is involved an accident.

Other communities in Florida that have domestic partnership registrations include the cities of Orlando and Gainesville and Miami-Dade, Broward and Palm Beach counties. The Tampa City Council has asked the city attorneys to draft an ordinance as a first step.

Biological vs. Birth Mother: On The Cutting Edge Of The Law

Kim Byrd — Tue, 14 Feb 2012 18:50:00 GMT

A Florida appellate court recently decided a case involving the parenting claims of two women for the same child. The women were same sex domestic partners who decided to have a child together. One of the women contributed her egg for the other to become pregnant. At birth the child was given a last name that was hyphenated combination of the last names of the two women. The two demonstrated in many additional ways their intention that each of them be a parent to the child. Even after the couple broke up, they shared custody of the child on an equal basis. However, the relationship of the women continued to deteriorate and the birth mother took the child and moved to Australia. The biological mother filed a law suit in Florida asking the court to grant her timesharing rights with the child. The trial court determined that the biological mother had no parental rights as a result of Florida's donor statute, Florida Statutes, Section 742.14. This statute provides that someone who donates sperm or an egg relinquishes their parental rights. In making its decision the trial judge described the actions of the birth mother as "morally reprehensible" and said that he hoped he would be overruled by the appellate court.

The decision by the appellate court was a three part decision. The judge who wrote the majority opinion focused on how the biological mother's contribution of the egg wasn't really a donation as described in the donor statute. The judge who wrote the dissenting opinion focused on how it was a donation covered by the statute. The concurring opinion was the most interesting. Instead of focusing on what the law did or did not provide, the judge who wrote the concurring opinion talked about what the law should provide. The concurring judge suggested that maybe the law should place more emphasis on the best interest of the child in such cases.

Of course, the rule of law is the foundation for civilization. It is essential that courts apply the existing law in making their decisions. Still, the application of existing law to new circumstances can sometimes yield results not contemplated or intended by the lawmakers. Certainly, or at least hopefully, the Florida legislature did not intend to deprive a three year old child of its mother even if the child has two mothers. Although this case is being reviewed by the appellate court, at least for now the child has continuing contact with both mothers.

Will I Have To Purchase A Life Insurance Policy To Secure My Child Support Obligation?

Tue, 07 Feb 2012 21:40:00 GMT

The Florida legislature has enacted a statue that authorizes a court to order a parent to carry a life insurance policy to secure his or her child support obligation. The statute also states that the party may alternatively be ordered to secure their child support obligation with a bond or any other asset that may be suitable for that purpose, although that is less common than an order to carry a life insurance policy.

A recent case law decision, Beharry v. Drake, 52 So. 3d 790 (Fla. 5^th DCA 2011)) held that a court cannot order a party to carry a life insurance policy that is higher than the amount of child support that party is obligated to pay. So, for example, in the Beharry case, the trial court ordered the party to carry a life insurance policy totaling $100,000. But, the party was only obligated to pay approximately $73,000.00 in child support payments. (Essentially the Father totaled his monthly child support payments for the entire span of years he had to pay child support to figure out that number). The appellate court held that the trial court abused its discretion and reversed the decision with instructions to limit the amount of life insurance coverage required to the amount of the obligation it secures. Further, appellate courts have stated that since the parties total child support obligation decreases over time, the amount of life insurance required should correspondingly decrease over time. The court must consider the availability and cost of such insurance and the financial impact it will have on the party before entering such award.

So, the general answer is yes, you will have to purchase a life insurance policy to secure your child support obligation, but contact your expert family law attorney to discuss this matter further and how it will affect your case.

Divorce Can Take Time

Kim Byrd — Thu, 19 Jan 2012 21:35:00 GMT

During the last few months of 2011, our family law firm was inundated with new clients who were anxious to have their divorces finalized before the end of the year. Whether these clients wanted to be able to file their 2011federal income tax return as single or whether they just wanted to start the New Year off as single is unknown, but they were definitely in a hurry. Of course, finalizing a divorce in such a short time requires that both parties be in complete agreement about the resolution of the issues in their case, including issues related to children and division of property and debts. Fortunately, most of them were. If the parties are in complete agreement and fully cooperate, the divorce can be filed as uncontested and finalized in a month or so.

Even in cases where the parties are not in complete agreement, our clients frequently want to have their divorce finalized as quickly as possible. However, it can take time to work out the financial and emotional entanglements resulting from a marriage. It is important to remember that these entanglements have taken time to develop, in some cases 20 years or more. It is sometimes unreasonable to expect that these issues can be sorted out in as little as a month. Sometimes giving one or both parties some additional time will help them come to grips with the new reality. Allowing them to approach things more logically and reach a more reasonable resolution.

This is one of the advantages of the Collaborative Divorce process. Parties in the Collaborative Divorce process have the assistance of a financial expert to help them sort out their finances and a mental health expert to help them deal with the emotions. The process progresses at a rate that is tailored to the parties, making sure each of them have time to process the transition. Whether you participate in a Collaborative Divorce or not, getting your divorce finalized as quickly as possible may not result in the best resolution. I am not suggesting that it should take years, but giving it a few extra months can help.

I Don't Believe In Vaccinating My Child, Will A Court Use That Against Me?

Damien McKinney — Tue, 17 Jan 2012 20:30:00 GMT

A recent Florida family law case dealt with a Mother whose religious beliefs opposed vaccinating her child but the Father believed the child should receive traditional medical care, including vaccinations. In Winters v. Brown, 51 So. 3d 656 (Fla. 4^th DCA 2011), the trial court held a hearing and awarded the Father ultimate responsibility to make health care decisions for the parties minor child. The Mother in this case did not believe in vaccinations or traditional western medicine and presented testimony regarding her religious beliefs. The Court additionally heard testimony from several expert witnesses, including doctors who testified to the effectiveness of vaccinations and the potential harm associated with not vaccinating a child. Usually appellate courts will overturn a trial court's restrictions on exposing a child to a parent's religious beliefs and practices, but they make an exception where there is a clear, affirmative showing that these religious activities will be harmful to the child. The trial court found the doctor's testimony to be credible in this case and that not vaccinating a child could cause physical and serious harm to the minor child. The appellate court upheld the trial court's ruling and found it was based upon competent and substantial evidence. An issue of this magnitude can be very complex and require testimony from numerous sources. If you believe your divorce case might present issues such as this, contact your expert child custody attorney to discuss whether the Winters case may apply to you.

Recent Relocation Decisions

Kim Byrd — Fri, 09 Dec 2011 16:10:00 GMT

A parent has well founded right to have timesharing with her or his child. This is the main reason Florida family law provides that a parent who wants to relocate more than 50 miles from their current residence must obtain either the other parents permission or the permission of the court. Whether to permit a parent to relocate with the minor child is a difficult decision for the court to make. Although the factors the court should consider in deciding whether a parent can relocate are set forth in the Florida Statutes, it can be difficult to predict whether the court will permit relocation in any particular case. For guidance, it can be helpful to look to actual cases that have been decided. Here are a couple of recent cases.

The Circuit Court for Dade County recently permitted the mother of a 10 year old daughter to move to California over the objections of the father. The mother's new husband was in the United States Coast Guard and had been reassigned to a station in California. The mother was not working as the parties had agreed that she would be a stay at home mom. The court referred to the nice home in California where the mother and child lived. In reviewing the factors, the court mentioned the close relationship between the mother and the child and the mother's offer to pay all of the travel expenses for the child to visit the father. The court stated that the relocation would enhance the general quality of life for the mother because her husband would be able to support her while she stayed at home. The court said that it was an extremely difficult decision but stated that the mother had met her burden of showing that the relocation was in the best interest of the child.

The Circuit Court for Orange County, in deciding a dissolution of marriage case, permitted a mother to relocate to the United Kingdom with her 7 year old daughter. Both the mother and the father were from the United Kingdom and both of them had family there. The parties were married in the United Kingdom. They had moved to Canada where they were both employed and earned roughly the same incomes. The father had received a job offer in Orlando and a visa that allowed him to work in the United States. The mother however was not able to obtain a work visa for the United States and decided to return to the United Kingdom with the child. The father then filed for divorce in Orange County. The court first ordered the return of the child to Florida, but then permitted the mother to relocate to the United Kingdom on a temporary basis and finally on a permanent basis. In reviewing the factors the court stated that the child had adapted well in her new school, that she was involved in horseback riding and in activities involving the families of both the mother and the father.

If you are considering relocation, you should consult with your Family Law attorney to see how the facts of these cases might apply to your circumstance.