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Relocation Judgment That Separated Siblings Reversed

July 6, 2017 by  
Filed under Uncategorized

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In a relocation case brought pursuant to Florida Statute Section 61.13001, siblings should not be separated from one another unless there is a compelling reason to do so.

In Sickels v Sickels, the Fifth District Court of Appeals for the State of Florida reversed a post divorce relocation judgment that separated two 15 year old twins from their 9 year old sibling by allowing the Father to relocate with the twins to Virginia but providing for the 9 year old to stay  with the Mother in Florida.  The trial court did not make a finding that there was a compelling reason for the 9 year old not to relocate with the other siblings, or that there would be some detriment to the minor child if he relocated with the Father and twins to Virginia. The Appellate Court ruled that absent such findings a judgment separating the siblings could not stand and reversed the judgment sending it back to the trial court for it to either make findings of a compelling reason and detriment to the 9 year old child or not separate the siblings from one another.

If you have minor children and wish to relocate with them it is important that you talk with a lawyer with experience in relocation cases.  If you want to talk to one of our lawyers about your situation please contct our office to schedule a consultation.

To Successfully Oppose Relocation With a Child the Promise of a Change in Future Behavior is Not Enough

June 13, 2017 by  
Filed under Uncategorized

relocating with a child

 

 

In Solomon v. Solomon the Former Husband had a gambling problem and some mental health issues.  The burden of proof under the Florida Relocation Statute, Florida Statute 61.13001, was initially on the Former Wife to show that the relocation was supported by the statutory factors and in the best interests of the minor child. Once established the burden of proof would then fall on the Former Husband to establish that the proposed relocation is not in the best interests of the minor child.

The trial court considered it to be in the best interests of the minor child to be able to relocate with the Former Wife to Virginia , however, the trial court then decided that the Former Husband had overcome the presumption in favor of relocation being in the best interests of the child through a promise to temper his gambling and address his mental health issues in the future.

The Fourth District Court of Appeals for the State of Florida reversed the trial Court’s decision stating that a promise of future changes was not enough,  that a determination needed to have been made in the best interests of the child at the time of the final hearing, and that it must be supported by competent and substantial evidence.

If you need help from an attorney in a relocation case call us for a consultation on (786) 539-4935.

Florida Statute 61.13001, Parental Relocation With A Child

August 19, 2015 by  
Filed under

RELOCATION

Navigating the relocation statutes requirements and presenting the correct evidence to the court in a contested relocation case is a complicated process and should be done with the assistance of an attorney who has handled such cases in the past.   Call us on (786)539-4935 to arrange a consultation.

Florida Statute Section 61.13001 (2015), Parental relocation with a child states:

(1) DEFINITIONS.—As used in this section, the term:

(a) “Child” means any person who is under the jurisdiction of a state court pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act or is the subject of any order granting to a parent or other person any right to time-sharing, residential care, kinship, or custody, as provided under state law.
(b) “Court” means the circuit court in an original proceeding which has proper venue and jurisdiction in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act, the circuit court in the county in which either parent and the child reside, or the circuit court in which the original action was adjudicated.
(c) “Other person” means an individual who is not the parent, but with whom the child resides pursuant to court order, or who has the right of access to, time-sharing with, or visitation with the child.
(d) “Parent” means any person so named by court order or express written agreement who is subject to court enforcement or a person reflected as a parent on a birth certificate and who is entitled to access to or time-sharing with the child.
(e) “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.
(2) RELOCATION BY AGREEMENT.—

(a) If the parents and every other person entitled to access to or time-sharing with the child agree to the relocation of the child, they may satisfy the requirements of this section by signing a written agreement that:

1. Reflects consent to the relocation;
2. Defines an access or time-sharing schedule for the nonrelocating parent and any other persons who are entitled to access or time-sharing; and
3. Describes, if necessary, any transportation arrangements related to access or time-sharing.
(b) If there is an existing cause of action, judgment, or decree of record pertaining to the child’s residence or a time-sharing schedule, the parties shall seek ratification of the agreement by court order without the necessity of an evidentiary hearing unless a hearing is requested, in writing, by one or more of the parties to the agreement within 10 days after the date the agreement is filed with the court. If a hearing is not timely requested, it shall be presumed that the relocation is in the best interest of the child and the court may ratify the agreement without an evidentiary hearing.
(3) PETITION TO RELOCATE.—Unless an agreement has been entered as described in subsection (2), a parent or other person 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 be in accordance with this section:

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

1. A description of the location of the intended new residence, including the state, city, and specific physical address, if known.
2. The mailing address of the intended new residence, if not the same as the physical address, if known.
3. The home telephone number of the intended new residence, if known.
4. The date of the intended move or proposed relocation.
5. A detailed statement of the specific reasons for the proposed relocation. If one of the reasons is based upon a job offer that has been reduced to writing, the written job offer must be attached to the petition.
6. A proposal for the revised postrelocation schedule for access and time-sharing together with a proposal for the postrelocation transportation arrangements necessary to effectuate time-sharing with the child. Absent the existence of a current, valid order abating, terminating, or restricting access or time-sharing or other good cause predating the petition, failure to comply with this provision renders the petition to relocate legally insufficient.
7. Substantially the following statement, in all capital letters and in the same size type, or larger, as the type in the remainder of the petition:

A RESPONSE TO THE PETITION OBJECTING TO RELOCATION MUST BE MADE IN WRITING, FILED WITH THE COURT, AND SERVED ON THE PARENT OR OTHER PERSON SEEKING TO RELOCATE WITHIN 20 DAYS AFTER SERVICE OF THIS PETITION TO RELOCATE. IF YOU FAIL TO TIMELY OBJECT TO THE RELOCATION, THE RELOCATION WILL BE ALLOWED, UNLESS IT IS NOT IN THE BEST INTERESTS OF THE CHILD, WITHOUT FURTHER NOTICE AND WITHOUT A HEARING.

(b) The petition to relocate must be served on the other parent and on every other person entitled to access to and time-sharing with the child. If there is a pending court action regarding the child, service of process may be according to court rule. Otherwise, service of process shall be according to chapters 48 and 49 or via certified mail, restricted delivery, return receipt requested.
(c) A parent or other person seeking to relocate has a continuing duty to provide current and updated information required by this section when that information becomes known.
(d) If the other parent and any other person entitled to access to or time-sharing with the child fails to timely file a response objecting to the petition to relocate, it is presumed that the relocation is in the best interest of the child and that the relocation should be allowed, and the court shall, absent good cause, enter an order specifying that the order is entered as a result of the failure to respond to the petition and adopting the access and time-sharing schedule and transportation arrangements contained in the petition. The order may be issued in an expedited manner without the necessity of an evidentiary hearing. If a response is timely filed, the parent or other person may not relocate, and must proceed to a temporary hearing or trial and obtain court permission to relocate.
(e) Relocating the child without complying with the requirements of this subsection subjects the party in violation to contempt and other proceedings to compel the return of the child and may be taken into account by the court in any initial or postjudgment action seeking a determination or modification of the parenting plan or the access or time-sharing schedule as:

1. A factor in making a determination regarding the relocation of a child.
2. A factor in determining whether the parenting plan or the access or time-sharing schedule should be modified.
3. A basis for ordering the temporary or permanent return of the child.
4. Sufficient cause to order the parent or other person seeking to relocate the child to pay reasonable expenses and attorney’s fees incurred by the party objecting to the relocation.
5. Sufficient cause for the award of reasonable attorney’s fees and costs, including interim travel expenses incident to access or time-sharing or securing the return of the child.
(4) APPLICABILITY OF PUBLIC RECORDS LAW.—If the parent or other person seeking to relocate a child, or the child, is entitled to prevent disclosure of location information under a public records exemption, the court may enter any order necessary to modify the disclosure requirements of this section in compliance with the public records exemption.
(5) OBJECTION TO RELOCATION.—An answer objecting to a proposed relocation must be verified and include the specific factual basis supporting the reasons for seeking a prohibition of the relocation, including a statement of the amount of participation or involvement the objecting party currently has or has had in the life of the child.
(6) TEMPORARY ORDER.—

(a) The court may grant a temporary order restraining the relocation of a child, order the return of the child, if a relocation has previously taken place, or order other appropriate remedial relief, if the court finds:

1. That the petition to relocate does not comply with subsection (3);
2. That the child has been relocated without a written agreement of the parties or without court approval; or
3. From an examination of the evidence presented at the preliminary hearing that there is a likelihood that upon final hearing the court will not approve the relocation of the child.
(b) The court may grant a temporary order permitting the relocation of the child pending final hearing, if the court finds:

1. That the petition to relocate was properly filed and is otherwise in compliance with subsection (3); and
2. From an examination of the evidence presented at the preliminary hearing, that there is a likelihood that on final hearing the court will approve the relocation of the child, which findings must be supported by the same factual basis as would be necessary to support approving the relocation in a final judgment.
(c) If the court has issued a temporary order authorizing a party seeking to relocate or move a child before a final judgment is rendered, the court may not give any weight to the temporary relocation as a factor in reaching its final decision.
(d) If temporary relocation of a child is approved, the court may require the person relocating the child to provide reasonable security, financial or otherwise, and guarantee that the court-ordered contact with the child will not be interrupted or interfered with by the relocating party.
(7) NO PRESUMPTION; FACTORS TO DETERMINE CONTESTED RELOCATION.—A presumption in favor of or against a request to relocate with the child does not arise if a parent or other person seeks to relocate and the move will materially affect the current schedule of contact, access, and time-sharing with the nonrelocating parent or other person. In reaching its decision regarding a proposed temporary or permanent relocation, the court shall evaluate all of the following:

(a) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life.
(b) The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(c) The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court.
(d) The child’s preference, taking into consideration the age and maturity of the child.
(e) Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities.
(f) The reasons each parent or other person is seeking or opposing the relocation.
(g) The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child.
(h) That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations.
(i) The career and other opportunities available to the objecting parent or other person if the relocation occurs.
(j) A history of substance abuse or domestic violence as defined in s. 741.28 or which meets the criteria of s. 39.806(1)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(k) Any other factor affecting the best interest of the child or as set forth in s. 61.13.
(8) BURDEN OF PROOF.—The parent or other person wishing to relocate has the burden of proving by a preponderance of the evidence that relocation is in the best interest of the child. If that burden of proof is met, the burden shifts to the nonrelocating parent or other person to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child.
(9) ORDER REGARDING RELOCATION.—If relocation is approved:

(a) The court may, in its discretion, order contact with the nonrelocating parent or other person, including access, time-sharing, telephone, Internet, webcam, and other arrangements sufficient to ensure that the child has frequent, continuing, and meaningful contact with the nonrelocating parent or other person, if contact is financially affordable and in the best interest of the child.
(b) If applicable, the court shall specify how the transportation costs are to be allocated between the parents and other persons entitled to contact, access, and time-sharing and may adjust the child support award, as appropriate, considering the costs of transportation and the respective net incomes of the parents in accordance with the state child support guidelines schedule.
(10) PRIORITY FOR HEARING OR TRIAL.—An evidentiary hearing or nonjury trial on a pleading seeking temporary or permanent relief filed under this section shall be accorded priority on the court’s calendar. If a motion seeking a temporary relocation is filed, absent good cause, the hearing must occur no later than 30 days after the motion for a temporary relocation is filed. If a notice to set the matter for a nonjury trial is filed, absent good cause, the nonjury trial must occur no later than 90 days after the notice is filed.
(11) APPLICABILITY.—

(a) This section applies:

1. To orders entered before October 1, 2009, if the existing order defining custody, primary residence, the parenting plan, time-sharing, or access to or with the child does not expressly govern the relocation of the child.
2. To an order, whether temporary or permanent, regarding the parenting plan, custody, primary residence, time-sharing, or access to the child entered on or after October 1, 2009.
3. To any relocation or proposed relocation, whether permanent or temporary, of a child during any proceeding pending on October 1, 2009, wherein the parenting plan, custody, primary residence, time-sharing, or access to the child is an issue.
(b) To the extent that a provision of this section conflicts with an order existing on October 1, 2009, this section does not apply to the terms of that order which expressly govern relocation of the child or a change in the principal residence address of a parent or other person.

Parent Moves Less Than 50 Miles And Does Not Trigger the Relocation Statute Or Violate An Agreement But Needs Permission Of The Other Parent Or A Ruling Of The Court To Change The School The Child Attends

July 21, 2015 by  
Filed under Uncategorized

 

 

The Fifth District Court of Appeals just ruled in Dickson v. Dickson, that the lower court should have taken evidence and used the best interests of the child standard to determine if modification of the child’s school and time-sharing (custody/visitation) with the child was in the child’s best interests in light of the parents inability to agree which school the minor child would attend and if necessary changed the parties time-sharing as necessary in light of the new school schedule.

The Florida Relocation Statute applies to moves of 50 miles or more as the crow flies and did not come into play when a Mother moved 49 miles from her prior residence. There was no school designation or prohibition on changing residence in the parties marital settlement agreement.  However, the parents had shared parental responsibility on major decisions including educational matters so the parents should have discussed the matter and come to an agreement or presented the matter to the court for determination based on the best interests of the child prior to removing the child from a school and re-enrolling him in another school.  

If you are faced with a time-sharing, relocation, or move of residence situation you should consult with one of our lawyers/attorneys to make sure that you take the right steps.

Decision from 4th District Court of Appeals Confirms the Court Must Hold an Evidentiary Hearing to Consider Temporary Relocation

April 23, 2013 by  
Filed under Uncategorized

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On April 10th the 4th DCA confirmed the provision in Fl.Stat. 61.13001 and held in Rivero v. Rivero that a court must hold an evidentiary hearing in order to consider a temporary relocation of a minor child pending a final hearing on a parent’s request to relocate. The appellate court determined that the trial court erred when it only considered the verified pleadings and argument of counsel when it permitted he mother to move with the minor child to North Carolina pending a final hearing. Preparing for an evidentiary hearing on a relocation issue is time-consuming. Parents who wish to relocate should contact counsel well in advance of the date they anticipate they will need to move.

Florida Legislature Passes Alimony Reform Bill

March 10, 2016 by  
Filed under Uncategorized

 

 

The Florida Legislature has passed SB668 which would change alimony law in Florida.  If signed by the Governor, the Bill will do away with permanent alimony and set formulas for the determination of alimony based upon the parties incomes and the length of the marriage.  This would take away a lot of the discretion that presently exists for a court to make a case by case determination of alimony and have a court follow presumptive guidelines as to duration and amount, with very limited exceptions, instead.

The bill states as follows:

1  
    2         An act relating to family law; amending s. 61.071,
    3         F.S.; requiring a court to consider certain alimony
    4         factors and make specific written findings of fact
    5         under certain circumstances; prohibiting a court from
    6         using certain presumptive alimony guidelines in
    7         calculating alimony pendente lite; amending s. 61.08,
    8         F.S.; defining terms; requiring a court to make
    9         specified initial written findings in a dissolution of
   10         marriage proceeding where a party has requested
   11         alimony; requiring a court to make specified findings
   12         before ruling on a request for alimony; providing for
   13         determinations of presumptive alimony amount range and
   14         duration range; providing presumptions concerning
   15         alimony awards depending on the duration of marriages;
   16         providing for imputation of income in certain
   17         circumstances; specifying exceptions to the guidelines
   18         for the amount and duration of alimony awards;
   19         providing for awards of nominal alimony in certain
   20         circumstances; providing for taxability and
   21         deductibility of alimony awards; prohibiting a
   22         combined award of alimony and child support from
   23         constituting more than a specified percentage of a
   24         payor’s net income; authorizing the court to order a
   25         party to protect an alimony award by specified means;
   26         providing for termination of an award; authorizing a
   27         court to modify or terminate the amount of an initial
   28         alimony award; prohibiting a court from modifying the
   29         duration of an alimony award; providing for payment of
   30         awards; amending s. 61.13, F.S.; specifying a premise
   31         that a minor child should spend approximately equal
   32         amounts of time with each parent; revising a finite
   33         list of factors that a court must evaluate when
   34         establishing or modifying parental responsibility or a
   35         parenting plan; requiring a court order to be
   36         supported by written findings of fact under certain
   37         circumstances; providing for prospective application
   38         of provisions of the act which relate to parenting
   39         plans and time-sharing; amending s. 61.14, F.S.;
   40         prohibiting a court from changing the duration of
   41         alimony; authorizing a party to pursue an immediate
   42         modification of alimony in certain circumstances;
   43         revising factors to be considered in determining
   44         whether an existing award of alimony should be reduced
   45         or terminated because of an alleged supportive
   46         relationship; providing for burden of proof for claims
   47         concerning the existence of supportive relationships;
   48         providing for the effective date of a reduction or
   49         termination of an alimony award; providing that the
   50         remarriage of an alimony obligor is not a substantial
   51         change in circumstance; providing that the financial
   52         information of a spouse of a party paying or receiving
   53         alimony is inadmissible and undiscoverable; providing
   54         an exception; providing for modification or
   55         termination of an award based on a party’s retirement;
   56         providing a presumption upon a finding of a
   57         substantial change in circumstance; specifying factors
   58         to be considered in determining whether to modify or
   59         terminate an award based on a substantial change in
   60         circumstance; providing for a temporary suspension of
   61         an obligor’s payment of alimony while his or her
   62         petition for modification or termination is pending;
   63         providing for an award of attorney fees and costs for
   64         unreasonably pursuing or defending a modification of
   65         an award; providing for an effective date of a
   66         modification or termination of an award; amending s.
   67         61.30, F.S.; requiring that a child support award be
   68         adjusted to reduce the combined alimony and child
   69         support award under certain circumstances; creating s.
   70         61.192, F.S.; providing for motions to advance the
   71         trial of certain actions if a specified period has
   72         passed since the initial service on the respondent;
   73         amending ss. 61.1827 and 409.2579, F.S.; conforming
   74         cross-references; providing applicability; providing
   75         an effective date.
   76          
   77  Be It Enacted by the Legislature of the State of Florida:
   78  
   79         Section 1. Section 61.071, Florida Statutes, is amended to
   80  read:
   81         61.071 Alimony pendente lite; suit money.—In every
   82  proceeding for dissolution of the marriage, a party may claim
   83  alimony and suit money in the petition or by motion, and if the
   84  petition is well founded, the court shall allow a reasonable sum
   85  therefor. If a party in any proceeding for dissolution of
   86  marriage claims alimony or suit money in his or her answer or by
   87  motion, and the answer or motion is well founded, the court
   88  shall allow a reasonable sum therefor. After determining there
   89  is a need for alimony and that there is an ability to pay
   90  alimony, the court shall consider the alimony factors in s.
   91  61.08(4)(b)1.-14. and make specific written findings of fact
   92  regarding the relevant factors that justify an award of alimony
   93  under this section. The court may not use the presumptive
   94  alimony guidelines in s. 61.08 to calculate alimony under this
   95  section.
   96         Section 2. Section 61.08, Florida Statutes, is amended to
   97  read:
   98         (Substantial rewording of section. See
   99         s. 61.08, F.S., for present text.)
  100         61.08 Alimony.—
  101         (1) DEFINITIONS.—As used in this section, unless the
  102  context otherwise requires, the term:
  103         (a)1. “Gross income” means recurring income from any source
  104  and includes, but is not limited to:
  105         a. Income from salaries.
  106         b. Wages, including tips declared by the individual for
  107  purposes of reporting to the Internal Revenue Service or tips
  108  imputed to bring the employee’s gross earnings to the minimum
  109  wage for the number of hours worked, whichever is greater.
  110         c. Commissions.
  111         d. Payments received as an independent contractor for labor
  112  or services, which payments must be considered income from self
  113  employment.
  114         e. Bonuses.
  115         f. Dividends.
  116         g. Severance pay.
  117         h. Pension payments and retirement benefits actually
  118  received.
  119         i. Royalties.
  120         j.Rental income, which is gross receipts minus ordinary
  121  and necessary expenses required to produce the income.
  122         k. Interest.
  123         l. Trust income and distributions which are regularly
  124  received, relied upon, or readily available to the beneficiary.
  125         m. Annuity payments.
  126         n. Capital gains.
  127         o. Any money drawn by a self-employed individual for
  128  personal use that is deducted as a business expense, which
  129  moneys must be considered income from self-employment.
  130         p. Social security benefits, including social security
  131  benefits actually received by a party as a result of the
  132  disability of that party.
  133         q. Workers’ compensation benefits.
  134         r. Unemployment insurance benefits.
  135         s. Disability insurance benefits.
  136         t. Funds payable from any health, accident, disability, or
  137  casualty insurance to the extent that such insurance replaces
  138  wages or provides income in lieu of wages.
  139         u. Continuing monetary gifts.
  140         v. Income from general partnerships, limited partnerships,
  141  closely held corporations, or limited liability companies;
  142  except that if a party is a passive investor, has a minority
  143  interest in the company, and does not have any managerial duties
  144  or input, the income to be recognized may be limited to actual
  145  cash distributions received.
  146         w. Expense reimbursements or in-kind payments or benefits
  147  received by a party in the course of employment, self
  148  employment, or operation of a business which reduces personal
  149  living expenses.
  150         x. Overtime pay.
  151         y. Income from royalties, trusts, or estates.
  152         z.Spousal support received from a previous marriage.
  153         aa.Gains derived from dealings in property, unless the
  154  gain is nonrecurring.
  155         2. “Gross income” does not include:
  156         a. Child support payments received.
  157         b. Benefits received from public assistance programs.
  158         c. Social security benefits received by a parent on behalf
  159  of a minor child as a result of the death or disability of a
  160  parent or stepparent.
  161         d. Earnings or gains on retirement accounts, including
  162  individual retirement accounts; except that such earnings or
  163  gains shall be included as income if a party takes a
  164  distribution from the account. If a party is able to take a
  165  distribution from the account without being subject to a federal
  166  tax penalty for early distribution and the party chooses not to
  167  take such a distribution, the court may consider the
  168  distribution that could have been taken in determining the
  169  party’s gross income.
  170         3.a. For income from self-employment, rent, royalties,
  171  proprietorship of a business, or joint ownership of a
  172  partnership or closely held corporation, the term “gross income”
  173  equals gross receipts minus ordinary and necessary expenses, as
  174  defined in sub-subparagraph b., which are required to produce
  175  such income.
  176         b. “Ordinary and necessary expenses,” as used in sub
  177  subparagraph a., does not include amounts allowable by the
  178  Internal Revenue Service for the accelerated component of
  179  depreciation expenses or investment tax credits or any other
  180  business expenses determined by the court to be inappropriate
  181  for determining gross income for purposes of calculating
  182  alimony.
  183         (b) “Potential income” means income which could be earned
  184  by a party using his or her best efforts and includes potential
  185  income from employment and potential income from the investment
  186  of assets or use of property. Potential income from employment
  187  is the income which a party could reasonably expect to earn by
  188  working at a locally available, full-time job commensurate with
  189  his or her education, training, and experience. Potential income
  190  from the investment of assets or use of property is the income
  191  which a party could reasonably expect to earn from the
  192  investment of his or her assets or the use of his or her
  193  property in a financially prudent manner.
  194         (c)1. “Underemployed” means a party is not working full
  195  time in a position which is appropriate, based upon his or her
  196  educational training and experience, and available in the
  197  geographical area of his or her residence.
  198         2. A party is not considered “underemployed” if he or she
  199  is enrolled in an educational program that can be reasonably
  200  expected to result in a degree or certification within a
  201  reasonable period, so long as the educational program is:
  202         a. Expected to result in higher income within the
  203  foreseeable future.
  204         b. A good faith educational choice based upon the previous
  205  education, training, skills, and experience of the party and the
  206  availability of immediate employment based upon the educational
  207  program being pursued.
  208         (d) “Years of marriage” means the number of whole years,
  209  beginning from the date of the parties’ marriage until the date
  210  of the filing of the action for dissolution of marriage.
  211         (2) INITIAL FINDINGS.—When a party has requested alimony in
  212  a dissolution of marriage proceeding, before granting or denying
  213  an award of alimony, the court shall make initial written
  214  findings as to:
  215         (a) The amount of each party’s monthly gross income,
  216  including, but not limited to, the actual or potential income,
  217  and also including actual or potential income from nonmarital or
  218  marital property distributed to each party.
  219         (b) The years of marriage as determined from the date of
  220  marriage through the date of the filing of the action for
  221  dissolution of marriage.
  222         (3) ALIMONY GUIDELINES.—After making the initial findings
  223  described in subsection (2), the court shall calculate the
  224  presumptive alimony amount range and the presumptive alimony
  225  duration range. The court shall make written findings as to the
  226  presumptive alimony amount range and presumptive alimony
  227  duration range.
  228         (a) Presumptive alimony amount range.—The low end of the
  229  presumptive alimony amount range shall be calculated by using
  230  the following formula:
  231  
  232  (0.015 x the years of marriage) x the difference between the
  233  monthly gross incomes of the parties
  234  
  235  The high end of the presumptive alimony amount range shall be
  236  calculated by using the following formula:
  237  
  238  (0.020 x the years of marriage) x the difference between the
  239  monthly gross incomes of the parties
  240  
  241  For purposes of calculating the presumptive alimony amount
  242  range, 20 years of marriage shall be used in calculating the low
  243  end and high end for marriages of 20 years or more. In
  244  calculating the difference between the parties’ monthly gross
  245  income, the income of the party seeking alimony shall be
  246  subtracted from the income of the other party. If the
  247  application of the formulas to establish a guideline range
  248  results in a negative number, the presumptive alimony amount
  249  shall be $0.
  250         (b) Presumptive alimony duration range.—The low end of the
  251  presumptive alimony duration range shall be calculated by using
  252  the following formula:
  253  
  254  0.25 x the years of marriage
  255  
  256  The high end of the presumptive alimony duration range shall be
  257  calculated by using the following formula:
  258  
  259  0.75 x the years of marriage
  260  
  261         (c)Exceptions to alimony guidelines.—
  262         1. If a court establishes the duration of the alimony award
  263  at 50 percent or less of the length of the marriage, the court
  264  shall use the actual years of the marriage, up to a maximum of
  265  25 years, to calculate the high end of the presumptive alimony
  266  amount range.
  267         2. A court may award alimony in an amount that equalizes
  268  the income of the parties until the obligor retires upon
  269  reaching the age for eligibility for full retirement benefits
  270  under s. 216 of the Social Security Act, 42 U.S.C. s. 416, or
  271  upon reaching the customary retirement age for his or her
  272  occupation if:
  273         a. The duration of the marriage was at least 20 years;
  274         b. Pursuant to the mutual agreement or consent of the
  275  parties to the marriage, one spouse substantially refrained from
  276  economic, educational, or employment opportunities primarily for
  277  the purpose of contributing to the marriage through homemaking
  278  or child care activities; and
  279         c. The spouse seeking alimony even with additional
  280  education faces dramatically reduced opportunities to advance in
  281  a career.
  282  
  283  This subparagraph should not be applied in a manner that
  284  discourages a spouse from seeking additional education or
  285  employment opportunities.
  286         (4) ALIMONY AWARD.—
  287         (a) Marriages of 2 years or less.—For marriages of 2 years
  288  or less, there is a rebuttable presumption that no alimony shall
  289  be awarded. The court may award alimony for a marriage with a
  290  duration of 2 years or less only if the court makes written
  291  findings that there is a clear and convincing need for alimony,
  292  there is an ability to pay alimony, and that the failure to
  293  award alimony would be inequitable. The court shall then
  294  establish the alimony award in accordance with paragraph (b).
  295         (b) Marriages of more than 2 years.—Absent an agreement of
  296  the parties, alimony shall presumptively be awarded in an amount
  297  within the alimony amount range calculated in paragraph (3)(a).
  298  Absent an agreement of the parties, alimony shall presumptively
  299  be awarded for a duration within the alimony duration range
  300  calculated in paragraph (3)(b). In determining the amount and
  301  duration of the alimony award, the court shall consider all of
  302  the following factors upon which evidence was presented:
  303         1. The financial resources of the recipient spouse,
  304  including the actual or potential income from nonmarital or
  305  marital property or any other source and the ability of the
  306  recipient spouse to meet his or her reasonable needs
  307  independently.
  308         2. The financial resources of the payor spouse, including
  309  the actual or potential income from nonmarital or marital
  310  property or any other source and the ability of the payor spouse
  311  to meet his or her reasonable needs while paying alimony.
  312         3. The standard of living of the parties during the
  313  marriage with consideration that there will be two households to
  314  maintain after the dissolution of the marriage and that neither
  315  party may be able to maintain the same standard of living after
  316  the dissolution of the marriage.
  317         4. The equitable distribution of marital property,
  318  including whether an unequal distribution of marital property
  319  was made to reduce or alleviate the need for alimony.
  320         5. Both parties’ income, employment, and employability,
  321  obtainable through reasonable diligence and additional training
  322  or education, if necessary, and any necessary reduction in
  323  employment due to the needs of an unemancipated child of the
  324  marriage or the circumstances of the parties.
  325         6. Whether a party could become better able to support
  326  himself or herself and reduce the need for ongoing alimony by
  327  pursuing additional educational or vocational training along
  328  with all of the details of such educational or vocational plan,
  329  including, but not limited to, the length of time required and
  330  the anticipated costs of such educational or vocational
  331  training.
  332         7. Whether one party has historically earned higher or
  333  lower income than the income reflected at the time of trial and
  334  the duration and consistency of income from overtime or
  335  secondary employment.
  336         8. Whether either party has foregone or postponed economic,
  337  educational, or employment opportunities during the course of
  338  the marriage.
  339         9. Whether either party has caused the unreasonable
  340  depletion or dissipation of marital assets.
  341         10. The amount of temporary alimony and the number of
  342  months that temporary alimony was paid to the recipient spouse.
  343         11. The age, health, and physical and mental condition of
  344  the parties, including consideration of significant health care
  345  needs or uninsured or unreimbursed health care expenses.
  346         12. Significant economic or noneconomic contributions to
  347  the marriage or to the economic, educational, or occupational
  348  advancement of a party, including, but not limited to, services
  349  rendered in homemaking, child care, education, and career
  350  building of the other party, payment by one spouse of the other
  351  spouse’s separate debts, or enhancement of the other spouse’s
  352  personal or real property.
  353         13. The tax consequence of the alimony award.
  354         14. Any other factor necessary to do equity and justice
  355  between the parties.
  356         (c) Deviation from guidelines.—The court may establish an
  357  award of alimony that is outside the presumptive alimony amount
  358  or alimony duration ranges only if the court considers all of
  359  the factors in paragraph (b) and makes specific written findings
  360  concerning the relevant factors justifying that the application
  361  of the presumptive alimony amount or alimony duration ranges, as
  362  applicable, is inappropriate or inequitable.
  363         (d) Order establishing alimony award.—After consideration
  364  of the presumptive alimony amount and duration ranges in
  365  accordance with paragraphs (3)(a) and (b) and the factors upon
  366  which evidence was presented in accordance with paragraph (b),
  367  the court may establish an alimony award. An order establishing
  368  an alimony award must clearly set forth both the amount and the
  369  duration of the award. The court shall also make a written
  370  finding that the payor has the financial ability to pay the
  371  award.
  372         (5) IMPUTATION OF INCOME.—If a party is voluntarily
  373  unemployed or underemployed, alimony shall be calculated based
  374  on a determination of potential income unless the court makes
  375  specific written findings regarding the circumstances that make
  376  it inequitable to impute income.
  377         (6) NOMINAL ALIMONY.—Notwithstanding subsections (1), (3),
  378  and (4), the court may make an award of nominal alimony in the
  379  amount of $1 per year if, at the time of trial, a party who has
  380  traditionally provided the primary source of financial support
  381  to the family temporarily lacks the ability to pay support but
  382  is reasonably anticipated to have the ability to pay support in
  383  the future. The court may also award nominal alimony for an
  384  alimony recipient who is presently able to work but for whom a
  385  medical condition with a reasonable degree of medical certainty
  386  may inhibit or prevent his or her ability to work during the
  387  duration of the alimony period. The duration of the nominal
  388  alimony shall be established within the presumptive durational
  389  range based upon the length of the marriage subject to the
  390  alimony factors in paragraph (4)(b). Before the expiration of
  391  the durational period, nominal alimony may be modified in
  392  accordance with s. 61.14 as to amount to a full alimony award
  393  using the alimony guidelines and factors in accordance with s.
  394  61.08.
  395         (7) TAXABILITY AND DEDUCTIBILITY OF ALIMONY.—
  396         (a) Unless otherwise stated in the judgment or order for
  397  alimony or in an agreement incorporated thereby, alimony shall
  398  be deductible from income by the payor under s. 215 of the
  399  Internal Revenue Code and includable in the income of the payee
  400  under s. 71 of the Internal Revenue Code.
  401         (b) When making a judgment or order for alimony, the court
  402  may, in its discretion after weighing the equities and tax
  403  efficiencies, order alimony be nondeductible from income by the
  404  payor and nonincludable in the income of the payee.
  405         (c) The parties may, in a marital settlement agreement,
  406  separation agreement, or related agreement, specifically agree
  407  in writing that alimony be nondeductible from income by the
  408  payor and nonincludable in the income of the payee.
  409         (8) MAXIMUM COMBINED AWARD.—In no event shall a combined
  410  award of alimony and child support constitute more than 55
  411  percent of the payor’s net income, calculated without any
  412  consideration of alimony or child support obligations.
  413         (9) SECURITY OF AWARD.—To the extent necessary to protect
  414  an award of alimony, the court may order any party who is
  415  ordered to pay alimony to purchase or maintain a decreasing term
  416  life insurance policy or a bond, or to otherwise secure such
  417  alimony award with any other assets that may be suitable for
  418  that purpose, in an amount adequate to secure the alimony award.
  419  Any such security may be awarded only upon a showing of special
  420  circumstances. If the court finds special circumstances and
  421  awards such security, the court must make specific evidentiary
  422  findings regarding the availability, cost, and financial impact
  423  on the obligated party. Any security may be modifiable in the
  424  event the underlying alimony award is modified and shall be
  425  reduced in an amount commensurate with any reduction in the
  426  alimony award.
  427         (10) TERMINATION OF AWARD.—An alimony award shall terminate
  428  upon the death of either party or the remarriage of the obligee.
  429         (11)MODIFICATION OF AWARD.—A court may subsequently modify
  430  or terminate the amount of an award of alimony initially
  431  established under this section in accordance with s. 61.14.
  432  However, a court may not modify the duration of an award of
  433  alimony initially established under this section.
  434         (12) PAYMENT OF AWARD.—
  435         (a) With respect to an order requiring the payment of
  436  alimony entered on or after January 1, 1985, unless paragraph
  437  (c) or paragraph (d) applies, the court shall direct in the
  438  order that the payments of alimony be made through the
  439  appropriate depository as provided in s. 61.181.
  440         (b) With respect to an order requiring the payment of
  441  alimony entered before January 1, 1985, upon the subsequent
  442  appearance, on or after that date, of one or both parties before
  443  the court having jurisdiction for the purpose of modifying or
  444  enforcing the order or in any other proceeding related to the
  445  order, or upon the application of either party, unless paragraph
  446  (c) or paragraph (d) applies, the court shall modify the terms
  447  of the order as necessary to direct that payments of alimony be
  448  made through the appropriate depository as provided in s.
  449  61.181.
  450         (c) If there is no minor child, alimony payments do not
  451  need to be directed through the depository.
  452         (d)1. If there is a minor child of the parties and both
  453  parties so request, the court may order that alimony payments do
  454  not need to be directed through the depository. In this case,
  455  the order of support shall provide, or be deemed to provide,
  456  that either party may subsequently apply to the depository to
  457  require that payments be made through the depository. The court
  458  shall provide a copy of the order to the depository.
  459         2. If subparagraph 1. applies, either party may
  460  subsequently file with the clerk of the court a verified motion
  461  alleging a default or arrearages in payment stating that the
  462  party wishes to initiate participation in the depository
  463  program. The moving party shall copy the other party with the
  464  motion. No later than 15 days after filing the motion, the court
  465  shall conduct an evidentiary hearing establishing the default
  466  and arrearages, if any, and issue an order directing the clerk
  467  of the circuit court to establish, or amend an existing, family
  468  law case history account, and further advising the parties that
  469  future payments must thereafter be directed through the
  470  depository.
  471         3. In IV-D cases, the Title IV-D agency shall have the same
  472  rights as the obligee in requesting that payments be made
  473  through the depository.
  474         Section 3. Paragraph (c) of subsection (2) and subsection
  475  (3) of section 61.13, Florida Statutes, are amended to read:
  476         61.13 Support of children; parenting and time-sharing;
  477  powers of court.—
  478         (2)
  479         (c) The court shall determine all matters relating to
  480  parenting and time-sharing of each minor child of the parties in
  481  accordance with the best interests of the child and in
  482  accordance with the Uniform Child Custody Jurisdiction and
  483  Enforcement Act, except that modification of a parenting plan
  484  and time-sharing schedule requires a showing of a substantial,
  485  material, and unanticipated change of circumstances.
  486         1. In establishing a parenting plan and time-sharing
  487  schedule, the court shall begin with the premise that a minor
  488  child should spend approximately equal amounts of time with each
  489  parent. Using this premise as a starting point, the court shall
  490  formulate a parenting plan and time-sharing schedule taking into
  491  account the best interest of the child after considering all of
  492  the relevant factors in subsection (3). It is the public policy
  493  of this state that each minor child has frequent and continuing
  494  contact with both parents after the parents separate or the
  495  marriage of the parties is dissolved and to encourage parents to
  496  share the rights and responsibilities, and joys, of
  497  childrearing. There is no presumption for or against the father
  498  or mother of the child or for or against any specific time
  499  sharing schedule when creating or modifying the parenting plan
  500  of the child.
  501         2. The court shall order that the parental responsibility
  502  for a minor child be shared by both parents unless the court
  503  finds that shared parental responsibility would be detrimental
  504  to the child. Evidence that a parent has been convicted of a
  505  misdemeanor of the first degree or higher involving domestic
  506  violence, as defined in s. 741.28 and chapter 775, or meets the
  507  criteria of s. 39.806(1)(d), creates a rebuttable presumption of
  508  detriment to the child. If the presumption is not rebutted after
  509  the convicted parent is advised by the court that the
  510  presumption exists, shared parental responsibility, including
  511  time-sharing with the child, and decisions made regarding the
  512  child, may not be granted to the convicted parent. However, the
  513  convicted parent is not relieved of any obligation to provide
  514  financial support. If the court determines that shared parental
  515  responsibility would be detrimental to the child, it may order
  516  sole parental responsibility and make such arrangements for
  517  time-sharing as specified in the parenting plan as will best
  518  protect the child or abused spouse from further harm. Whether or
  519  not there is a conviction of any offense of domestic violence or
  520  child abuse or the existence of an injunction for protection
  521  against domestic violence, the court shall consider evidence of
  522  domestic violence or child abuse as evidence of detriment to the
  523  child.
  524         a. In ordering shared parental responsibility, the court
  525  may consider the expressed desires of the parents and may grant
  526  to one party the ultimate responsibility over specific aspects
  527  of the child’s welfare or may divide those responsibilities
  528  between the parties based on the best interests of the child.
  529  Areas of responsibility may include education, health care, and
  530  any other responsibilities that the court finds unique to a
  531  particular family.
  532         b. The court shall order sole parental responsibility for a
  533  minor child to one parent, with or without time-sharing with the
  534  other parent if it is in the best interests of the minor child.
  535         3. Access to records and information pertaining to a minor
  536  child, including, but not limited to, medical, dental, and
  537  school records, may not be denied to either parent. Full rights
  538  under this subparagraph apply to either parent unless a court
  539  order specifically revokes these rights, including any
  540  restrictions on these rights as provided in a domestic violence
  541  injunction. A parent having rights under this subparagraph has
  542  the same rights upon request as to form, substance, and manner
  543  of access as are available to the other parent of a child,
  544  including, without limitation, the right to in-person
  545  communication with medical, dental, and education providers.
  546         (3) For purposes of establishing or modifying parental
  547  responsibility and creating, developing, approving, or modifying
  548  a parenting plan, including a time-sharing schedule, which
  549  governs each parent’s relationship with his or her minor child
  550  and the relationship between each parent with regard to his or
  551  her minor child, the best interest of the child shall be the
  552  primary consideration. A determination of parental
  553  responsibility, a parenting plan, or a time-sharing schedule may
  554  not be modified without a showing of a substantial, material,
  555  and unanticipated change in circumstances and a determination
  556  that the modification is in the best interests of the child.
  557  Determination of the best interests of the child shall be made
  558  by evaluating all of the factors affecting the welfare and
  559  interests of the particular minor child and the circumstances of
  560  that family, including, but not limited to:
  561         (a) The demonstrated capacity and disposition of each
  562  parent to facilitate and encourage a close and continuing
  563  parent-child relationship, to honor the time-sharing schedule,
  564  and to be reasonable when changes are required.
  565         (b) The anticipated division of parental responsibilities
  566  after the litigation, including the extent to which parental
  567  responsibilities will be delegated to third parties.
  568         (c) The demonstrated capacity and disposition of each
  569  parent to determine, consider, and act upon the needs of the
  570  child as opposed to the needs or desires of the parent.
  571         (d) The length of time the child has lived in a stable,
  572  satisfactory environment and the desirability of maintaining
  573  continuity.
  574         (e) The geographic viability of the parenting plan, with
  575  special attention paid to the needs of school-age children and
  576  the amount of time to be spent traveling to effectuate the
  577  parenting plan. This factor does not create a presumption for or
  578  against relocation of either parent with a child.
  579         (f) The moral fitness of the parents.
  580         (g) The mental and physical health of the parents.
  581         (h) The home, school, and community record of the child.
  582         (i) The reasonable preference of the child, if the court
  583  deems the child to be of sufficient intelligence, understanding,
  584  and experience to express a preference.
  585         (j) The demonstrated knowledge, capacity, or and
  586  disposition of each parent to be informed of the circumstances
  587  of the minor child, including, but not limited to, the child’s
  588  friends, teachers, medical care providers, daily activities, and
  589  favorite things.
  590         (k) The demonstrated capacity or and disposition of each
  591  parent to provide a consistent routine for the child, such as
  592  discipline, and daily schedules for homework, meals, and
  593  bedtime.
  594         (l) The demonstrated capacity of each parent to communicate
  595  with and keep the other parent informed of issues and activities
  596  regarding the minor child, and the willingness of each parent to
  597  adopt a unified front on all major issues when dealing with the
  598  child.
  599         (m) Evidence of domestic violence, sexual violence, child
  600  abuse, child abandonment, or child neglect, regardless of
  601  whether a prior or pending action relating to those issues has
  602  been brought. If the court accepts evidence of prior or pending
  603  actions regarding domestic violence, sexual violence, child
  604  abuse, child abandonment, or child neglect, the court must
  605  specifically acknowledge in writing that such evidence was
  606  considered when evaluating the best interests of the child.
  607         (n) Evidence that either parent has knowingly provided
  608  false information to the court regarding any prior or pending
  609  action regarding domestic violence, sexual violence, child
  610  abuse, child abandonment, or child neglect.
  611         (o) The demonstrated capacity or disposition of each parent
  612  to perform or ensure the performance of particular parenting
  613  tasks customarily performed by the other each parent and the
  614  division of parental responsibilities before the institution of
  615  litigation and during the pending litigation, including the
  616  extent to which parenting responsibilities were undertaken by
  617  third parties.
  618         (p) The demonstrated capacity and disposition of each
  619  parent to participate and be involved in the child’s school and
  620  extracurricular activities.
  621         (q) The demonstrated capacity and disposition of each
  622  parent to maintain an environment for the child which is free
  623  from substance abuse.
  624         (r) The capacity and disposition of each parent to protect
  625  the child from the ongoing litigation as demonstrated by not
  626  discussing the litigation with the child, not sharing documents
  627  or electronic media related to the litigation with the child,
  628  and refraining from disparaging comments about the other parent
  629  to the child.
  630         (s) The developmental stages and needs of the child and the
  631  demonstrated capacity and disposition of each parent to meet the
  632  child’s developmental needs.
  633         (t) Any other factor that is relevant to the determination
  634  of a specific parenting plan, including the time-sharing
  635  schedule.
  636  
  637  The court shall make detailed written findings of fact which
  638  support and justify any parenting plan or time-sharing schedule
  639  that is not based on an agreement between the parents.
  640         Section 4. The amendments by this act to s. 61.13, Florida
  641  Statutes, apply only to proceedings in which the initial
  642  petition for dissolution of marriage or initial petition to
  643  establish a parenting plan or time-sharing schedule is filed on
  644  or after October 1, 2016.
  645         Section 5. Subsection (1) of section 61.14, Florida
  646  Statutes, is amended to read:
  647         61.14 Enforcement and modification of support, maintenance,
  648  or alimony agreements or orders.—
  649         (1)(a) When the parties enter into an agreement for
  650  payments for, or instead of, support, maintenance, or alimony,
  651  whether in connection with a proceeding for dissolution or
  652  separate maintenance or with any voluntary property settlement,
  653  or when a party is required by court order to make any payments,
  654  and the circumstances or the financial ability of either party
  655  changes or the child who is a beneficiary of an agreement or
  656  court order as described herein reaches majority after the
  657  execution of the agreement or the rendition of the order, either
  658  party may apply to the circuit court of the circuit in which the
  659  parties, or either of them, resided at the date of the execution
  660  of the agreement or reside at the date of the application, or in
  661  which the agreement was executed or in which the order was
  662  rendered, for an order decreasing or increasing the amount of
  663  support, maintenance, or alimony, and the court has jurisdiction
  664  to make orders as equity requires, with due regard to the
  665  changed circumstances or the financial ability of the parties or
  666  the child, decreasing, increasing, or confirming the amount of
  667  separate support, maintenance, or alimony provided for in the
  668  agreement or order. However, a court may not decrease or
  669  increase the duration of alimony provided for in the agreement
  670  or order. A party is entitled to pursue an immediate
  671  modification of alimony if the actual income earned by the other
  672  party exceeds by at least 10 percent the amount imputed to that
  673  party at the time the existing alimony award was determined and
  674  such circumstance shall constitute a substantial change in
  675  circumstances sufficient to support a modification of alimony.
  676  However, an increase in an alimony obligor’s income alone does
  677  not constitute a basis for a modification to increase alimony
  678  unless at the time the alimony award was established it was
  679  determined that the obligor was underemployed or unemployed and
  680  the court did not impute income to that party at his or her
  681  maximum potential income. If an alimony obligor becomes
  682  involuntarily underemployed or unemployed for a period of 6
  683  months following the entry of the last order requiring the
  684  payment of alimony, the obligor is entitled to pursue an
  685  immediate modification of his or her existing alimony
  686  obligations and such circumstance shall constitute a substantial
  687  change in circumstance sufficient to support a modification of
  688  alimony. A finding that medical insurance is reasonably
  689  available or the child support guidelines schedule in s. 61.30
  690  may constitute changed circumstances. Except as otherwise
  691  provided in s. 61.30(11)(c), the court may modify an order of
  692  support, maintenance, or alimony by increasing or decreasing the
  693  support, maintenance, or alimony retroactively to the date of
  694  the filing of the action or supplemental action for modification
  695  as equity requires, giving due regard to the changed
  696  circumstances or the financial ability of the parties or the
  697  child.
  698         (b)1. The court may reduce or terminate an award of alimony
  699  upon specific written findings by the court that since the
  700  granting of a divorce and the award of alimony a supportive
  701  relationship exists or has existed within the previous year
  702  before the date of the filing of the petition for modification
  703  or termination between the obligee and another a person with
  704  whom the obligee resides. On the issue of whether alimony should
  705  be reduced or terminated under this paragraph, the burden is on
  706  the obligor to prove by a preponderance of the evidence that a
  707  supportive relationship exists.
  708         2. In determining whether an existing award of alimony
  709  should be reduced or terminated because of an alleged supportive
  710  relationship between an obligee and a person who is not related
  711  by consanguinity or affinity and with whom the obligee resides,
  712  the court shall elicit the nature and extent of the relationship
  713  in question. The court shall give consideration, without
  714  limitation, to circumstances, including, but not limited to, the
  715  following, in determining the relationship of an obligee to
  716  another person:
  717         a. The extent to which the obligee and the other person
  718  have held themselves out as a married couple by engaging in
  719  conduct such as using the same last name, using a common mailing
  720  address, referring to each other in terms such as “my husband”
  721  or “my wife,” “my spouse” or otherwise conducting themselves in
  722  a manner that evidences a permanent supportive relationship.
  723         b. The period of time that the obligee has resided with the
  724  other person in a permanent place of abode.
  725         c. The extent to which the obligee and the other person
  726  have pooled their assets or income or otherwise exhibited
  727  financial interdependence.
  728         d. The extent to which the obligee or the other person has
  729  supported the other, in whole or in part.
  730         e. The extent to which the obligee or the other person has
  731  performed valuable services for the other.
  732         f. The extent to which the obligee or the other person has
  733  performed valuable services for the other’s company or employer.
  734         g. Whether the obligee and the other person have worked
  735  together to create or enhance anything of value.
  736         h. Whether the obligee and the other person have jointly
  737  contributed to the purchase of any real or personal property.
  738         i. Evidence in support of a claim that the obligee and the
  739  other person have an express agreement regarding property
  740  sharing or support.
  741         j. Evidence in support of a claim that the obligee and the
  742  other person have an implied agreement regarding property
  743  sharing or support.
  744         k. Whether the obligee and the other person have provided
  745  support to the children of one another, regardless of any legal
  746  duty to do so.
  747         l. Whether the obligor’s failure, in whole or in part, to
  748  comply with all court-ordered financial obligations to the
  749  obligee constituted a significant factor in the establishment of
  750  the supportive relationship.
  751         3. In any proceeding to modify an alimony award based upon
  752  a supportive relationship, the obligor has the burden of proof
  753  to establish, by a preponderance of the evidence, that a
  754  supportive relationship exists or has existed within the
  755  previous year before the date of the filing of the petition for
  756  modification or termination. The obligor is not required to
  757  prove cohabitation of the obligee and the third party.
  758         4. Notwithstanding paragraph (f), if a reduction or
  759  termination is granted under this paragraph, the reduction or
  760  termination is retroactive to the date of filing of the petition
  761  for reduction or termination.
  762         5.3. This paragraph does not abrogate the requirement that
  763  every marriage in this state be solemnized under a license, does
  764  not recognize a common law marriage as valid, and does not
  765  recognize a de facto marriage. This paragraph recognizes only
  766  that relationships do exist that provide economic support
  767  equivalent to a marriage and that alimony terminable on
  768  remarriage may be reduced or terminated upon the establishment
  769  of equivalent equitable circumstances as described in this
  770  paragraph. The existence of a conjugal relationship, though it
  771  may be relevant to the nature and extent of the relationship, is
  772  not necessary for the application of the provisions of this
  773  paragraph.
  774         (c)1. For purposes of this section, the remarriage of an
  775  alimony obligor does not constitute a substantial change in
  776  circumstance or a basis for a modification of alimony.
  777         2. The financial information, including, but not limited
  778  to, information related to assets and income, of a subsequent
  779  spouse of a party paying or receiving alimony is inadmissible
  780  and may not be considered as a part of any modification action
  781  unless a party is claiming that his or her income has decreased
  782  since the marriage. If a party makes such a claim, the financial
  783  information of the subsequent spouse is discoverable and
  784  admissible only to the extent necessary to establish whether the
  785  party claiming that his or her income has decreased is diverting
  786  income or assets to the subsequent spouse that might otherwise
  787  be available for the payment of alimony. However, this
  788  subparagraph may not be used to prevent the discovery of or
  789  admissibility in evidence of the income or assets of a party
  790  when those assets are held jointly with a subsequent spouse.
  791  This subparagraph is not intended to prohibit the discovery or
  792  admissibility of a joint tax return filed by a party and his or
  793  her subsequent spouse in connection with a modification of
  794  alimony.
  795         (d)1. An obligor may file a petition for modification or
  796  termination of an alimony award based upon his or her actual
  797  retirement.
  798         a. A substantial change in circumstance is deemed to exist
  799  if:
  800         (I) The obligor has reached the age for eligibility to
  801  receive full retirement benefits under s. 216 of the Social
  802  Security Act, 42 U.S.C. s. 416, and has retired; or
  803         (II) The obligor has reached the customary retirement age
  804  for his or her occupation and has retired from that occupation.
  805  An obligor may file an action within 1 year of his or her
  806  anticipated retirement date and the court shall determine the
  807  customary retirement date for the obligor’s profession. However,
  808  a determination of the customary retirement age is not an
  809  adjudication of a petition for a modification of an alimony
  810  award.
  811         b. If an obligor voluntarily retires before reaching any of
  812  the ages described in sub-subparagraph a., the court shall
  813  determine whether the obligor’s retirement is reasonable upon
  814  consideration of the obligor’s age, health, and motivation for
  815  retirement and the financial impact on the obligee. A finding of
  816  reasonableness by the court shall constitute a substantial
  817  change in circumstance.
  818         2. Upon a finding of a substantial change in circumstance,
  819  there is a rebuttable presumption that an obligor’s existing
  820  alimony obligation shall be modified or terminated. The court
  821  shall modify or terminate the alimony obligation, or make a
  822  determination regarding whether the rebuttable presumption has
  823  been overcome, based upon the following factors applied to the
  824  current circumstances of the obligor and obligee:
  825         a. The age of the parties.
  826         b. The health of the parties.
  827         c. The assets and liabilities of the parties.
  828         d. The earned or imputed income of the parties as provided
  829  in s. 61.08(1)(a) and (5).
  830         e. The ability of the parties to maintain part-time or
  831  full-time employment.
  832         f. Any other factor deemed relevant by the court.
  833         3. The court may temporarily reduce or suspend the
  834  obligor’s payment of alimony while his or her petition for
  835  modification or termination under this paragraph is pending.
  836         (e) A party who unreasonably pursues or defends an action
  837  for modification of alimony shall be required to pay the
  838  reasonable attorney fees and costs of the prevailing party.
  839  Further, a party obligated to pay prevailing party attorney fees
  840  and costs in connection with unreasonably pursuing or defending
  841  an action for modification is not entitled to an award of
  842  attorney fees and costs in accordance with s. 61.16.
  843         (f) There is a rebuttable presumption that a modification
  844  or termination of an alimony award is retroactive to the date of
  845  the filing of the petition, unless the obligee demonstrates that
  846  the result is inequitable.
  847         (g)(c) For each support order reviewed by the department as
  848  required by s. 409.2564(11), if the amount of the child support
  849  award under the order differs by at least 10 percent but not
  850  less than $25 from the amount that would be awarded under s.
  851  61.30, the department shall seek to have the order modified and
  852  any modification shall be made without a requirement for proof
  853  or showing of a change in circumstances.
  854         (h)(d) The department may shall have authority to adopt
  855  rules to implement this section.
  856         Section 6. Paragraph (d) is added to subsection (11) of
  857  section 61.30, Florida Statutes, to read:
  858         61.30 Child support guidelines; retroactive child support.—
  859         (11)
  860         (d) Whenever a combined alimony and child support award
  861  constitutes more than 55 percent of the payor’s net income,
  862  calculated without any consideration of alimony or child support
  863  obligations, the court shall adjust the award of child support
  864  to ensure that the 55 percent cap is not exceeded.
  865         Section 7. Section 61.192, Florida Statutes, is created to
  866  read:
  867         61.192 Advancing trial.—In an action brought pursuant to
  868  this chapter, if more than 2 years have passed since the initial
  869  petition was served on the respondent, either party may move the
  870  court to advance the trial of their action on the docket. This
  871  motion may be made at any time after 2 years have passed since
  872  the petition was served, and once made the court must give the
  873  case priority on the court’s calendar.
  874         Section 8. Subsection (1) of section 61.1827, Florida
  875  Statutes, is amended to read:
  876         61.1827 Identifying information concerning applicants for
  877  and recipients of child support services.—
  878         (1) Any information that reveals the identity of applicants
  879  for or recipients of child support services, including the name,
  880  address, and telephone number of such persons, held by a non
  881  Title IV-D county child support enforcement agency is
  882  confidential and exempt from s. 119.07(1) and s. 24(a) of Art. I
  883  of the State Constitution. The use or disclosure of such
  884  information by the non-Title IV-D county child support
  885  enforcement agency is limited to the purposes directly connected
  886  with:
  887         (a) Any investigation, prosecution, or criminal or civil
  888  proceeding connected with the administration of any non-Title
  889  IV-D county child support enforcement program;
  890         (b) Mandatory disclosure of identifying and location
  891  information as provided in s. 61.13(8) s. 61.13(7) by the non
  892  Title IV-D county child support enforcement agency when
  893  providing non-Title IV-D services;
  894         (c) Mandatory disclosure of information as required by ss.
  895  409.2577, 61.181, 61.1825, and 61.1826 and Title IV-D of the
  896  Social Security Act; or
  897         (d) Disclosure to an authorized person, as defined in 45
  898  C.F.R. s. 303.15, for purposes of enforcing any state or federal
  899  law with respect to the unlawful taking or restraint of a child
  900  or making or enforcing a parenting plan. As used in this
  901  paragraph, the term “authorized person” includes a parent with
  902  whom the child does not currently reside, unless a court has
  903  entered an order under s. 741.30, s. 741.31, or s. 784.046.
  904         Section 9. Subsection (1) of section 409.2579, Florida
  905  Statutes, is amended to read:
  906         409.2579 Safeguarding Title IV-D case file information.—
  907         (1) Information concerning applicants for or recipients of
  908  Title IV-D child support services is confidential and exempt
  909  from the provisions of s. 119.07(1). The use or disclosure of
  910  such information by the IV-D program is limited to purposes
  911  directly connected with:
  912         (a) The administration of the plan or program approved
  913  under part A, part B, part D, part E, or part F of Title IV;
  914  under Title II, Title X, Title XIV, Title XVI, Title XIX, or
  915  Title XX; or under the supplemental security income program
  916  established under Title XVI of the Social Security Act;
  917         (b) Any investigation, prosecution, or criminal or civil
  918  proceeding connected with the administration of any such plan or
  919  program;
  920         (c) The administration of any other federal or federally
  921  assisted program which provides service or assistance, in cash
  922  or in kind, directly to individuals on the basis of need;
  923         (d) Reporting to an appropriate agency or official,
  924  information on known or suspected instances of physical or
  925  mental injury, child abuse, sexual abuse or exploitation, or
  926  negligent treatment or maltreatment of a child who is the
  927  subject of a support enforcement activity under circumstances
  928  which indicate that the child’s health or welfare is threatened
  929  thereby; and
  930         (e) Mandatory disclosure of identifying and location
  931  information as provided in s. 61.13(8) s. 61.13(7) by the IV-D
  932  program when providing Title IV-D services.
  933         Section 10. The amendments made by this act to chapter 61,
  934  Florida Statutes, apply to all initial determinations of alimony
  935  and all alimony modification actions that are pending as of the
  936  effective date of this act, and to all initial determinations of
  937  alimony and all alimony modification actions brought on or after
  938  the effective date of this act. The enacting of this act may not
  939  serve as the sole basis for a party to seek a modification of an
  940  alimony award existing before the effective date of this act.
  941         Section 11. This act shall take effect October 1, 2016.

The Florida Senate Has Passed A Bill That Would Create a Presumption of Equal Time-sharing For Parents

February 24, 2016 by  
Filed under Uncategorized

 

 

The Florida Senate has passed a bill (Senate Bill 250) that would create a presumption that it is in the best interests of the child(ren) of parents that each parent enjoy equal time-sharing.  Courts would still be able to establish a different time-sharing schedule provided that they can overcome the statutory presumption based on the consideration of 22 factors set forth in the proposed amended statute.  The effective date of the bill would be October 1, 2016.

 Section 1. Subsection (3) of section 61.13, Florida
   18  Statutes, is amended to read:
   19         61.13 Support of children; parenting and time-sharing;
   20  powers of court.—
   21         (3) For purposes of establishing or modifying parental
   22  responsibility and creating, developing, approving, or modifying
   23  a parenting plan, including a time-sharing schedule, which
   24  governs each parent’s relationship with his or her minor child
   25  and the relationship between each parent with regard to his or
   26  her minor child, the best interest of the child shall be the
   27  primary consideration.
   28         (a) Approximately equal time-sharing with a minor child by
   29  both parents is presumed to be in the best interest of the
   30  child. In determining whether the presumption is overcome, the
   31  court shall evaluate the evidence based on A determination of
   32  parental responsibility, a parenting plan, or a time-sharing
   33  schedule may not be modified without a showing of a substantial,
   34  material, and unanticipated change in circumstances and a
   35  determination that the modification is in the best interests of
   36  the child. Determination of the best interests of the child
   37  shall be made by evaluating all of the factors affecting the
   38  welfare and interests of the particular minor child and the
   39  circumstances of that family, including, but not limited to:
   40         1.(a) The demonstrated capacity or and disposition of each
   41  parent to facilitate and encourage a close and continuing
   42  parent-child relationship, to honor the time-sharing schedule,
   43  and to be reasonable when changes are required.
   44         2.(b) The anticipated division of parental responsibilities
   45  after the litigation, including the extent to which parental
   46  responsibilities will be delegated to third parties.
   47         3.(c) The demonstrated capacity and disposition of each
   48  parent to determine, consider, and act upon the needs of the
   49  child as opposed to the needs or desires of the parent.
   50         4.(d) The length of time the child has lived in a stable,
   51  satisfactory environment and the desirability of maintaining
   52  continuity.
   53         5.(e) The geographic viability of the parenting plan, with
   54  special attention paid to the needs of school-age children and
   55  the amount of time to be spent traveling to carry out effectuate
   56  the parenting plan. This factor does not create a presumption
   57  for or against relocation of either parent with a child.
   58         6.(f) The moral fitness of the parents.
   59         7.(g) The mental and physical health of the parents.
   60         8.(h) The home, school, and community record of the child.
   61         9.(i) The reasonable preference of the child, if the court
   62  deems the child to be of sufficient intelligence, understanding,
   63  and experience to express a preference.
   64         10.(j) The demonstrated knowledge, capacity, or and
   65  disposition of each parent to be informed of the circumstances
   66  of the minor child, including, but not limited to, the child’s
   67  friends, teachers, medical care providers, daily activities, and
   68  favorite things.
   69         11.(k) The demonstrated capacity or and disposition of each
   70  parent to provide a consistent routine for the child, such as
   71  discipline, and daily schedules for homework, meals, and
   72  bedtime.
   73         12.(l) The demonstrated capacity of each parent to
   74  communicate with the other parent and keep the other parent
   75  informed of issues and activities regarding the minor child, and
   76  the willingness of each parent to adopt a unified front on all
   77  major issues when dealing with the child.
   78         13.(m) Evidence of domestic violence, sexual violence,
   79  child abuse, child abandonment, or child neglect, regardless of
   80  whether a prior or pending action relating to those issues has
   81  been brought. If the court accepts evidence of prior or pending
   82  actions regarding domestic violence, sexual violence, child
   83  abuse, child abandonment, or child neglect, the court must
   84  specifically acknowledge in writing that such evidence was
   85  considered when evaluating the best interests of the child.
   86         14.(n) Evidence that either parent has knowingly provided
   87  false information to the court regarding any prior or pending
   88  action regarding domestic violence, sexual violence, child
   89  abuse, child abandonment, or child neglect.
   90         15.(o) The demonstrated capacity or disposition of each
   91  parent to perform or ensure the performance of particular
   92  parenting tasks customarily performed by the other each parent
   93  and the division of parental responsibilities before the
   94  institution of litigation and during the pending litigation,
   95  including the extent to which parenting responsibilities were
   96  undertaken by third parties.
   97         16.(p) The demonstrated capacity and disposition of each
   98  parent to participate and be involved in the child’s school and
   99  extracurricular activities.
  100         17.(q) The demonstrated capacity and disposition of each
  101  parent to maintain an environment for the child which is free
  102  from substance abuse.
  103         18.(r) The capacity and disposition of each parent to
  104  protect the child from the ongoing litigation as demonstrated by
  105  not discussing the litigation with the child, not sharing
  106  documents or electronic media related to the litigation with the
  107  child, and refraining from disparaging comments about the other
  108  parent to the child.
  109         19.(s) The developmental stages and needs of the child and
  110  the demonstrated capacity and disposition of each parent to meet
  111  the child’s developmental needs.
  112         20. The amount of time-sharing requested by each parent.
  113         21. The frequency that a parent would likely leave the
  114  child in the care of a nonrelative on evenings and weekends when
  115  the other parent would be available and willing to provide care.
  116         22.(t) Any other factor that is relevant to the
  117  determination of a specific parenting plan, including the time
  118  sharing schedule.
  119         (b) A court order must be supported by written findings of
  120  fact if the order establishes an initial permanent time-sharing
  121  schedule that does not provide for approximately equal time
  122  sharing.
  123         (c) A determination of parental responsibility, a parenting
  124  plan, or a time-sharing schedule may not be modified without a
  125  determination that such modification is in the best interest of
  126  the child and upon a showing of a substantial, material, and
  127  unanticipated change in circumstances.
  128         Section 2. This act shall take effect October 1, 2016.

Appellate Court Reverses Modification Of Time-Sharing Where There Was No Competent Material Evidence Of A Substantial Change In Circumstances or Harm to Child

November 17, 2015 by  
Filed under Uncategorized

 

 

 

In George v. Lull, the Fourth District Court of Appeals for the State of Florida reversed a modification of time-sharing in favor of the father because there was no competent material evidence of record to show a substantial change in circumstances and to support the modification of time-sharing. 

The time-sharing schedule that the father sought to modify provided for the parties to have alternating week days and weekends and provisions were made to accommodate the parents work travel  schedules.  The father ultimately sought the child having alternating two week blocks of time with each parent.

The mother initiated the post judgment litigation by filing for relocation claiming that she had lost her employment and wanted to move to a location which had more employment opportunities for someone with her experience and skills.  In response, the father sought modification of the time-sharing schedule claiming that there had been a substantial change in circumstances based upon his now being able to work from home and because the child would greatly benefit from more time with the father. 

At the final hearing, the trial court found that there had been a substantial change in circumstances based on the change in the father’s work schedule, because the minor child was older and needed to spend more time with the father, and because the child was likely to be stressed by the present time-sharing arrangements. 

The Fourth District Court of Appeals disagreed with the trial court’s modification of time-sharing in favor of the father.  The appellate Court’s opinion makes no reference as to what happened in relation to the mother’s relocation request.  The Court reasoned that the father still had the same employment that he had at the time of the marital settlement agreement and that while he had testified that he would be able to work from home “if necessary” and be more flexible with his work travel dates and times his testimony did not rise to the level of competent evidence necessary to establish a substantial change in circumstances.  The Court also reasoned that there was no competent evidence sufficient to support a finding that the child was stressed by the present time-sharing arrangement.

While stating that while there may be instances when a change in work schedule would constitute a substantial change in circumstances the appellate Court determine that in this case the evidence did not support such a finding.

If you want a consultation with one of our attorneys or lawyers to discuss the modification of a time-sharing schedule and what kind of evidence needs to be presented to the court for a modification to be ordered by a trial court and/or upheld on appeal please call us on (786)539-4935.

 

 

Paternity, Time-sharing, and Child Support Lawyers

September 24, 2015 by  
Filed under

PATERNITY LAWYERS

Paternity, time-sharing, and child support cases can be highly emotional and traumatic for everyone involved. You need a lawyer on your side that understand that to help you through the process.  Parents often do not know their rights or responsibilities. It is recommended that you obtain the services of an attorney concerning your rights in a paternity case, your children’s rights, and your responsibilities.  We can understand and analyze your unique circumstances to help you to make decisions in your best interest and the best interests of your family and we work hard to achieve your goals.

 

A paternity action is a legal proceeding to establish the paternity of a child.  Sometimes the parties agree as to the paternity of the child.  Sometimes it is disputed and a DNA test is used to establish paternity or disestablish paternity.  Only once paternity has been established can a father of a child born out of a valid marriage have his rights to time-sharing and parental responsibility determined by a Court.  Once paternity is established through such an action a father can seek to establish a parenting plan including time-sharing (custody/visitation) and parental responsibility (decision making).  Paternity can also be established by other methods for the purposes of child support but they do not resolve the issues of time-sharing and parental responsibility.  Call us for a consultation with one of our lawyers concerning your rights as a parent or your paternity case on (786) 539-4935.

PARENTING PLANS (CUSTODY/VISITATION/PARENTAL RESPONSIBILITY)

Public policy in Florida favors that each minor child has contact with both parents after the parents have separated or divorced and that parents share responsibility for all major decisions concerning the child.

paternity custody children

 

 

 

 

 

 

 

 

 

In determining time-sharing (custody/visitation) and parental responsibility each parent is meant to be given equal consideration. Usually the court awards shared parental responsibility and both parents share parental rights and responsibilities with respect to their child.  Shared parental responsibility requires that parents discuss major issues and decisions affecting their child and attempt to reach a consensus or agreement.  The parents are expected to  agree or have the court decide an issue that they do not agree on. 

Where warranted by specific facts a court can order ultimate decision making authority or sole parental responsibility be given to one of the parents over all issues or a specific issue.  To award sole parental responsibility the court must make a determination that shared parental responsibility would cause harm to the child. 

A parenting plan establishes whether the parents have shared parental responsibility or if one parent has ultimate decision making or sole parental responsibility for major decisions affecting a child.  It also specifies the time-sharing schedule that the parties will have with a child.  It can also specify how and when each parent is meant to be able to communicate with the child during the other parent’s time-sharing.  A court is meant to apply the “Best Interests of the Child” standard when considering a parenting plan, time-sharing, custody, and parental responsibility. 

Call us to schedule a consultation with a paternity lawyer concerning the issues in your case on (786) 539-4935.

 

For recent posts on time-sharing, custody, and visitation click here.

CHILD SUPPORT

Parents have a legal responsibility to support their child(ren).  Usually this legal obligation continues until a child reaches 18, is emancipated, joins the armed forces, or dies.  The child support responsibility is based upon the needs of the child, the income of the parents, and the time-sharing schedule, specifically the number of overnights each parent has.  Statutory guidelines are used to calculate the amount of support a child needs based upon the income of the parents.  Insurance and daycare expenses are then accounted for in the calculation before each parent’s proportion of the total child support obligation is calculated based upon the parents incomes.

In a divorce or paternity case the court can impute income if it determines that a parent is voluntarily unemployed or underemployed.  First, the court decides if the unemployment or underemployment that resulted in the termination or decrease in that parent’s income is or was voluntary.  Then the court should decide if continuing unemployment or underemployment is the lask of a parent’s use of best efforts to obtain new employment.

The court can impute income based upon a parent’s potential and probable earnings evidenced by their recent work history, qualifications, availability of positions the parent is qualified to take, or even the parent’s living expenses and present lifestyle.  A parent seeking to impute income based upon the other parent’s potential and probable earnings must present competent and substantial evidence that the other parent can earn the amount sought to be imputed.  The court must then make specific findings based upon the evidence of the source and amount of that available income. 

Once a judgment has been entered there needs to be a substantial change in circumstances for the modification of child support if the change was not specified in the judgment.  A change in child support could be based upon a change of income, expenses, or court ordered time-sharing. Child support can only be modified back to the date of the petition for modification.  So if there has been a change in circumstances warranting a modification of child support it is important to get the petition for modification filed as soon as possible.

It is not legally permissible to withhold time-sharing because the other parent does not pay child support or pays it late. 

If you need to talk to a child support layer about the establishment, modification, or enforcement of child support contact our offices to schedule a consultation on (786) 539-4935.

 

To see Florida Statute Section 61.30 relating to child support click here.

RELOCATION

Where a parent wishes to relocate more than 50 miles from their principal place of residence at the time of the last judgment or order setting time-sharing they need to comply with Florida Statute 61.13001 by obtaining a written agreement that complies with the requirements of the statute or obtaining an order of the court allowing for the relocation through a Petition for relocation.  Failure to comply with the strict requirements of the statute by the party seeking relocation can lead to adverse orders and the denial of the relocation.   Failure to timely object to a petition and comply with the statute by a parent who does not wish the relocation to take place can also result in adverse orders and an order allowing for the relocation.  

Navigating the relocation statutes requirements and presenting the correct evidence to the court in a contested relocation case is a complicated process and should be done with the assistance of an attorney who has handled such cases in the past. Call us for a consultation withone of our attorneys concerning relocation on (786) 539-4935.

For recent posts on relocation click here.

APPEALS

If you feel a judge’s decision was incorrect it may be possible for you to appeal that decision. While a judge in a dissolution of marriage case has broad discretion it is required that the judge’s rulings and judgment comply with the law and are supported by admissible testimony and evidence presented to the court. Where a judge’s ruling does not comply with the law or is not supported by admissible testimony and evidence presented to the court an appellate court may reverse the trial court’s decision.  You need to determine whether to take an appeal of a final judgment within 30 days of the filing of the final judgment. Call us to schedule a consultation with one of our lawyers regarding an appeal on (786) 539-4935.

For recent posts on appeals click here.

What Does A Court Usually Consider To Determine Parental Responsibility Or Time-Sharing (Custody/Visitation) In Florida

July 6, 2015 by  
Filed under Uncategorized

 

 

The best interests of the minor child(ren) is usually the primary consideration of the Court.  Pursuant to Florida Statute Section 61.13 a determination of the best interests of the child(ren) is made by evaluating all of the factors affecting the welfare and interests of the  minor child and the circumstances of that family, including, but not limited to:

(a) 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.
(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
(f) The moral fitness of the parents.
(g) The mental and physical health of the parents.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
(j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.
(k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.
(l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.
(n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
(o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
(q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
(r) 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 media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
(s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
 
The Statue also has some subsections that are not listed above that may apply in a particular case.  If the Court is going to be making a decision about parental responsibility or time-sharing (custody/visitation) in your case it is important that you get the help you need from an attorney to develop, gather and present the evidence that reveals to the Court what the best interests of the child(ren) really are.   

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Disclaimer: The Law Offices of Robert Hanreck, P.A. is based in Miami , Florida and serves clients throughout the State including Miami-Dade and Broward counties. We are licensed to practice law in the State of Florida. This website is intended for informational purposes only and is not meant to constitute legal advice, or solicit clients outside of the State of Florida.