Child Custody

October 21, 2011

How Do I File for Divorce, Dissolution of Marriage, Alimony, or Child Support in the State of Florida?

Written By: Lenorae C. Atter, Attorney
latter@woodatter.com

Florida laws regarding divorce, alimony and child support are defined in Chapter 61 of Florida Statutes. To file for an action of divorce involving alimony and child support, or simply a dissolution of marriage, you have to file a petition entitled, “In re the marriage of ____, Husband, and ____, Wife,” Florida Statute 61.043. Once you file the petition in the Circuit Court (e.g. Jacksonville is in the Fourth Judicial Circuit), a summons is required so that the other party can be served a copy of the petition. In addition, the statute requires that the petitioner to fill-out and provide to the clerk an anonymous questionnaire for the research purposes.

Once the other party is served with the petition, she/he has 20 days in which to file an Answer with the court, under Florida Family Law Rules of Procedure. The answer actually provides a response to each paragraph alleged in the petition. For example, if you file a petition for divorce and a paragraph states, “Wife is in need of alimony and requests either lump sum, rehabilitative or permanent alimony,” then the Husband would answer, unless in agreement with this, that he denies that paragraph. If the other party does not file an answer within the 20 days, then the Petitioner may ask the court to grant everything requested because the other party is in default.

September 15, 2011

What Are The Requirements For a Change of Custody of a Child in a Florida Custody Fight After Divorce ?

By Wood, Atter & Wolf, P.A.

law%20book%20on%20table.jpg

First, it is no longer called child custody but “timeshare”. Each parent is entitled to a share of the child/children’s time. Usually, one parent has the majority share in order to provide stability to the minor children instead of bouncing day to day or week to week between homes after divorce.

There has to be a distinct change of circumstances in one or both parents that affect the best interest of the minor child/children. An example of a significant change in circumstances would be that major timeshare parent has a severe job schedule change. Another significant change may be that a parent was arrested for a felony. Another example would be that the children are suffering some developmental emotional growth problem because of the behavior of that parent. Is the child suddenly doing poorly in school because of activities at home ? Does the former spouse have a new mate that is abusive to the child ?

Always, the underlying theme or question is “what is in the best interest of the minor child?” A change of mind by the minority timeshare parent after the final judgment of dissolution of marriage is just not enough.

September 5, 2011

What Florida Law Applies to Moving a Child Out of The State of Florida ?

By Wood, Atter & Wolf, P.A.

best%20interest.jpg

Florida Statute 61.502 explains the primary purpose of the UCCCJEA, which include: (1) avoiding jurisdiction competition and conflict with courts of other states in matters of child custody; (2) promoting cooperation with the courts of other states to the end that a custody decree is rendered in the state that can best decide the case in the interest of the child; (3) deterring abductions and (4) reducing the harmful effects of jurisdictional conflicts.

The UCCJEA is a really confusing statute that has a lot of different parts. Essentially the main idea is this: You can’t just kidnap your child and relocate to another state and think you will get away with it, and think that you can haul the other parent in a foreign forum to defend a child dispute. The child’s home state has primary jurisdiction over any custody dispute. A child’s home state is usually determined by the answer to the following question: Where has the child continuously resided for the last six months? So, if you did happen to move to a new state with your child and want to sue your former spouse for child custody in your new state, you would have to wait at least six months after moving to the other jurisdiction before you can do anything. Even then, the new state could chose to decline to exercise jurisdiction on different grounds. For example, either the new state or old state could be deemed an “inconvenient forum.” Or, the new state may be required to defer to the previous state because the child still has “significant contacts” to the old state. A significant contact to the old state may be where the other parent lives, or if there are records and documents pertaining to that child in the old state.

The key point to keep in mind is that you are not going to win custody simply because you moved to another state with your kids. There is a possibility that you will still be bound by the child’s original home state. That home state may have assumed “exclusive” jurisdiction over the child and absent some specific circumstances, the home state will retain jurisdiction for the time.

August 26, 2011

Determining the “Best Interests” of a Child in Florida Family Law Matters

By Wood, Atter & Wolf, P.A.

Florida courts make a plethora of decisions regarding children. These decisions range from timesharing and decision making, safety and permanency planning, and proceedings for termination of parental rights. Whenever courts make such decisions, it must consider whether its decision would be in the “best interests” of the child. Most States have a statute requiring that the child’s best interests be considered whenever certain types of decisions regarding a child’s custody, placement or other critical issues are made. Although there is no specific Florida statutory definition of “best interests of a child,” the concept typically refers to the deliberation that courts undertake when deciding what type of services, actions and orders will best serve a child as well as who is best suited to take care of a child.

During a Jacksonville Florida child custody proceeding, the court will consider a number of factors to determine the “best interest” of a child. These factors may include the love, affection, and other emotional ties between the parents and the child; the mental health, physical health and morality of the parents; and most importantly, which parent is more likely to encourage contact between the child and the other parent. For a complete list of the best interests factors, see Florida Statute 61.13.

August 25, 2011

How to Get Legal Custody over Your Grandchild

By Wood, Atter & Wolf, P.A.

best%20interest.jpg

There are many reasons why a grandparent may need to care for a grandchild for an extended period of time in Florida. Obtaining a Florida court order placing the child in the grandparent’s custody would allow the grandparents to obtain medical attention for the child, the right to enroll the child in school and the right to apply for State and Federal benefits on behalf of the child. A grandparent who cares for their grandchild or who has the consent of the child’s parents may petition a Jacksonville (Duval County) Florida court for temporary relative custody.

Temporary Relative Custody in Florida may be considered when a parent is unable to care for the child due to drug or alcohol abuse, incarceration, financial instability, mental health issues, responsibilities related to work or the military. A Judge will award custody to the grandparent if it is in the child’s best interest and the parents do not object. If the parents do object, then the court must make a finding of abuse, neglect or abandonment by the parents before granting custody. The judge may also grant visitation rights to the parents, and order the parents to pay child support to the grandparent. The order may be terminated if either parent petitions the court to do so, if the judge finds that the parent is a fit parent or the grandparents consent to the termination of the order.

Temporary relative custody of a minor child may also be granted to other Jacksonville adult family members such as an aunt, uncle, sibling or first cousin. For more information on this topic, see Florida State 751- Temporary Custody of Minor Children by Extended Family.

August 17, 2011

The Underlying Cause of Parental Kidnapping: Domestic Violence.

By Wood, Atter & Wolf, P.A.

Parental kidnapping affects families across the nation. According to The United States Department of Justice, 200,000 children are victims of family abductions per year. Sadly, most people do not realize that domestic violence is the underlying cause in many cases.

When Jacksonville parents/ parents nationwide take their children in domestic violence cases, the kidnapping usually occurs in either of the following scenarios. In one scenario, the batterers take the children in order to harm their victims. In the other, the victims flee with their children in an effort to protect themselves and their children from the batterer’s violence.

Batterers will often use their children as a way to hurt or frighten their former spouse. For example, they may pursue custody or visitation litigation as a means of trying to control their former spouse. In addition, they may use the custody proceedings to obtain more information about their former spouse, to continue to monitor them or to perpetrate additional violence.

August 16, 2011

Florida Divorce and Summer Time-Sharing: Dealing with Summer Holidays, Summer Camp, and Vacation

By Wood, Atter & Wolf, P.A.

Jacksonville Florida parents who go through a divorce can write a parenting plan to decide how they will divide their children’s time after a divorce. The plan provides a roadmap for the child’s future, and is the most important document in a Florida divorce with children.

A parenting plan approved by the court must at a minimum: describe how parents will share and be responsible for the daily tasks associated with the upbringing of the child, the time-sharing schedule arrangements that specify the time that the child will spend with each parent, a designation of who will be responsible for health care, school-related matters, other actives, and the methods and technologies that the parents will use to communicate with the child.

A parenting plan has two separate components: (1) decision making- parental responsibilities and privileges to make decisions relating to the health, education, and welfare of the child, and (2) time sharing- where the child lives at any given time and contact with the other parent. These two aspects are distinct and must be examined according to the best interest of the child.

August 12, 2011

My Spouse Cheated On Me – How Does This Affect Alimony? Child Custody?

By Wood, Atter & Wolf, P.A.

Historically in Florida and other States, adultery and divorce were much more closely correlated than they are today in the eyes of the law. In order to get a divorce in the past, the innocent party had to prove that their spouse committed some significant wrongdoing in order to seek legal approval for the termination of marriage. However, today Florida along with most other states has no fault divorce laws. In no fault divorce cases, there are certain legal requirements but these do not include proof of adultery or other fault. However, under some conditions the Florida family law court will consider adultery when adjudicating other issues such as alimony or child support.

The Florida Alimony rule provides that “the court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded.” However, in order for the Florida family law court to give alimony based on the adultery, the adultery must have produced a financial loss to the innocent spouse.

When awarding child custody in Florida, the court will consider all factors affecting the welfare and interests of the child. One factor the court will take into consideration is “the moral fitness of the parents.” An act of adultery is likely to be a reflection on the moral fitness of a parent, but this factor alone is not enough to influence a court’s determination on custody. As the Florida Statutes suggest, there are a number of factors that a court will consider when determining the best interests of a child.

August 9, 2011

What is the “best interest of a child” standard?

By Wood, Atter & Wolf, P.A.

best%20interest.jpg
The “best interest of the child” standard in a Florida Family Law Case generally refers to the deliberation that courts undertake when deciding what type of services, actions, and orders will best serve a child and for determining who is best suited to take care of a child. “Best interests” determinations are generally made by consideration a number of factors related to the circumstances surrounding the issue of the child. In addition, the child’s ultimate safety and well-being are is the most important concern.

When awarding child custody, Florida Statute 61.13 outlines several factors for the court to consider that affect the welfare and interests of a child, including but not limited to:

a. The parent who is more likely to allow the child frequent and continuing contact with the non-custodial parent.

August 5, 2011

Parenting Coordination: An Emerging Practice Area

By Wood, Atter & Wolf, P.A.

When you are facing a divorce in Jacksonville, Florida, there are many issues that must be resolved in order to obtain a final decree of divorce. The issues may include enforcement of a premarital agreement, division of property and debts, and alimony. For families that involve children, the most controversial issues that must be resolved are child support, custody, and visitation issues. The issues surrounding the decision making of children are not easily resolved, and often results in conflict between the parents.

During a high conflict divorce, Jacksonville parents can use the help of a parenting coordinator to help make amicable decisions regarding the care of their children. A parenting coordinator is an impartial third person who is usually a trained mental health or legal professional with experience in mediation. The role of a parenting coordinator is to create appropriate parenting plans; resolve ongoing conflicts between co-parents; monitor parental behavior; and with the approval of the parties and the court, make temporary decisions within the scope of the court order or appointment contract. The Parenting Coordinator is usually appointed by the Court and with the consent of the parents. Parents may also volunteer to utilize the services of a parenting coordinator voluntarily. Parenting Coordinator is not appropriate, and will not be assigned to families with a history of domestic violence.

More than one million children each year experience the harsh realities of divorce and family separation. It is the actions that parents take during and after a divorce that determine how a child will be affected. For more information on parenting coordination, see Parenting Coordination Central. The guidelines for parenting coordination are set forth in Florida Statute 61.125.