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Grandparent Entitled to Makeup Time-Sharing (Visitation) Where Out Of State Time-Sharing Judgment Was Entitled to Full Faith and Credit

June 8, 2017 by  
Filed under Uncategorized

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While the Florida Statutes do not provide for grandparents to have time-sharing like parents, an out of state Judgment domesticated in Florida is entitled to full faith and credit and can be enforced in Florida.   The Fifth District Court of Appeals for the State of Florida just reversed a trial court decision that did not provide for make up time-sharing for a grandparent based upon the argument that the Florida Statutes do not provide such a remedy to grandparents. The Fifth District Court of Appeals reversed reasoning that restricting the remedies available to a grandparent would be tantamount to not giving full faith and credit to the out of state judgment and that the remedy is available to enforce an out of state judgment. So just because Florida does not itself provide for grandparents to have time-sharing as if they were parents it does not mean that an out of state decision that they are entitled to such time-sharing shall not be given full faith and credit and enforced.

The Court stated:

“The Florida Supreme Court stated in no uncertain terms that the Colorado grandparent visitation order—which was entered in compliance with the Parental Kidnapping Prevention Act of 1980 (PKPA) —is by the express terms of the PKPA subject to the commands of the Full Faith and Credit Clause. Ledoux-Nottingham, 210 So. 3d at 1221. In order to give the Colorado order full faith and credit, the grandparents are entitled to enforce their grandparent visitation rights in Florida. The remedy provided in the Florida Statutes due to a party’s refusal to honor timesharing rights is make-up timesharing to the nonoffending party under section 61.13(4)(c). See § 61.13(4)(c), Fla. Stat. (2013) (stating a court shall award make-up timesharing where the refusal is “without proper cause”). In this sense, make-up visitation “square[s] the loss of past visitation rights.” Morales v. Morales, 915 So. 2d 247, 249 n.1 (Fla. 5th DCA 2005). Furthermore, section 61.526, titled “Duty to enforce,” authorizes the award of “any remedy” to enforce another state’s child custody determination. § 61.526, Fla. Stat. (2013). We construe these provisions together, and conclude that the grandparents are entitled to pursue the remedy of make-up visitation. As a result, we reverse and remand this matter to the trial court for determination of the issue of make-up visitation. The trial court must determine whether it would be in the children’s best interest for the grandparents to receive make-up visitation and if so, order timesharing in a manner fitting the best interests of the children. See Cheek v. Hesik, 73 So. 3d 340 (Fla. 1st DCA 2011).”

Veto Alimony And Equal Time-Sharing Custody Presumption Bill

April 18, 2016 by  
Filed under Uncategorized

Alimony and Custody Bill Vetoed

Photo Credit Meredyth Hope Hall

On Friday Governor Rick Scott vetoed the alimony reform and equal time-sharing presumption bill that had passed the Florida Legislature.  Gov. Scott stated that he had vetoed the bill because he did not think the initial presumption of equal time-sharing for both parents would be in the best interests of children.  Presently there is no presumption of equal time-sharing or custody and the courts use a list of statutory factors and the best interests of the children in determining time-sharing between parents.

Governor Scott did not comment on the alimony reform sections of the bill which would have ended permanent alimony and created guidelines for it based upon the parties incomes and the length of the marriage.  Because the legislature had decided to put both the alimony reform measures and equal time-sharing presumption changes in the same bill the alimony reform law can not pass alone.  It is unclear if the Governor would have vetoed the alimony portions of the bill if they had arrived on his desk without the time-sharing portions of the bill.

Gov. Scott experienced the divorce of his own parents.  He has also reported that his daughter is in the process of a divorce.  Gov. Scott’s own personal experiences may have shaped his views on the issues.

Time-Sharing Judgment That Differed From Court’s Oral Ruling Reversed

March 22, 2016 by  
Filed under Uncategorized

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In TJ v. TWC, III, the Second District Court of Appeals for the State of Florida revered a time-sharing judgment that differed from the trial court’s oral ruling.  In the trial court’s oral ruling the mother was to have time-sharing every other weekend from Friday when school let out to Monday morning.  However, the final judgment of paternity specified a return to the Father on Sunday evenings thereby depriving the Mother of an overnight. The oral ruling and judgment should have been consistent.

Domestic Violence Court’s Denial Of Motion to Vacate Final Order Related to Time-Sharing Reversed

March 18, 2016 by  
Filed under Uncategorized

 

 

In Butler v. Casaba, the Fourth District Court of Appeals for the State of Florida reversed the trial court’s order denying a motion to vacate a final order of injunction which had taken all time-sharing away from the father and given it all to the mother.  Prior to the injunction the father had enjoyed majority time-sharing and been the primary residential parent.  The trial court had initially entered a final order of injunction which left time-sharing as it had been but the trial court then entered an amended order which awarded all time-sharing to the mother.  The Court of Appeals ruled that the record did not support a change in time-sharing.

If you need to talk to an attorney about a domestic violence injunction or time-sharing issue call us to schedule a consultation.

Unless And Until There Is A Statutory Change, Equal Time-Sharing Needs To Be Supported By A Determination That It Is In The Children’s Best Interests

March 15, 2016 by  
Filed under Uncategorized

 

 

In Marquez v. Lopez, the Fourth District Court of Appeals for the State of Florida ruled that it was in error for the trial court to award equal time-sharing without making a determination that such a time-sharing schedule was in the best interests of the children.

The Court stated in pertinent part:

First, we agree with the former wife that the trial court erred in providing for equal time-sharing without an accompanying finding that
such an arrangement is in the best interests of the children. See Jeffers v. McLeary, 118 So. 3d 287, 291 (Fla. 4th DCA 2013) (“The Father is correct that ‘a trial court must make a finding that the time-sharing schedule is in the child’s best interests.’”); Wintersv. Brown, 51 So. 3d 656, 658 (Fla. 4th DCA 2011) (recognizing that a trial court “must make a finding that the time-sharing schedule is in the child’s best interests”); Clark v. Clark, 825 So. 2d 1016, 1017 (Fla. 1st DCA 2002) (“A trial court need not make separate findings as to each of the factors in section 61.13(3), but it must find, at a minimum, that its custody determination is in the best interests of the child.”). This finding must be made either orally or in the written judgment. See Jeffers, 118 So. 3d at 291. Although the record here might support a finding that equal time-sharing is in the best interests of the childrenthe final judgment does not include such a finding and it is not for us to do so.

The parties dispute whether the trial court relied on a parenting agreement submitted after the trial concluded. The record is devoid of clarity as to whether the court did or did not rely on some agreement entered into by the parties, but even if it did, the trial court must approve of the agreed upon parenting plan as required by the applicable statute. See §61.046(14)(a), Fla. Stat. (2014).

We therefore reverse and remand for the trial court to either find that equal time-sharing is in the best interests of the children or fashion a time-sharing plan that it does find is in the best interests of the children. If the parents actually submitted a parenting plan to the court after trial, the court is not precluded from approving of the plan pursuant to section 61.046(14)(a), if the trial court holds that the plan is in the best interests of the children.

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.

4 Important Reasons Not To Wait To Try Establish A Time-Sharing, Custody, Or Visitation Order In A Divorce Or Paternity Action

December 17, 2015 by  
Filed under Uncategorized

 

 

When parents separate they should try to get a time-sharing, custody, or visitation order in place as soon as possible so that their rights can be established and preserved.  (1) Waiting can lead to the other parent denying them time with the child(ren); (2) denying them shared parental decision making concerning the child(ren); (3) allow for the build up of a retroactive child support obligation for the period a parent was denied time-sharing; and (4) for a parent denied time with their child(ren) and shared decision making, waiting also raises the logical questions for the court of:  if time with the child(ren), shared decision making, and support of your child(ren) are important to you why did you wait?  The longer you wait the worse it looks and at some point you may even find yourself facing a child support enforcement case brought by the state attorney’s office where the only thing being adjudicated is your obligation to pay retroactive and ongoing support rather than your rights to time-sharing and parental decision making.

If the separation is amicable, an order can usually be obtained through an agreement being submitted to the Court once a case has been initiated.  Obtaining an order protects your rights if things become less amicable in the future.  If the separation is not amicable, there is even more reason to attempt to obtain an adjudication of your rights from the court sooner than later.

 

 

 

 

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.

 

 

Modification Of Time-Sharing Improper Where Father Had Filed A Motion For Contempt

November 10, 2015 by  
Filed under Uncategorized

 

 

 

In Cockrell v. Kinnett, the Fifth District Court of Appeals for the State of Florida ruled that the trial court should not have modified time-sharing based upon the motion for contempt before it.  The father had filed a motion for contempt alleging that the mother had denied him time-sharing on three separate occasions.  While the father requested a change in time-sharing in the body of the motion he did not include it in the prayer for relief.  The father had not filed a petition for modification of time-sharing as called for by the parties prior agreement and the applicable law.  He had not alleged that there had been a substantial change in circumstances or that a modification of time-sharing would be in the child’s best interests.  Accordingly, the Fifth District Court of Appeals held that the trial court should not have modified time-sharing.

If you are involved in a paternity case, divorce case, or seeking a modification of a judgment just having good facts on your side may not be enough.  It is important that you file the correct paperwork and present the correct and best evidence to the court to support your position at the trial and appellate levels.  If you don’t the trial court or appellate court may have to rule against you. 

If you want a consultation with one of our attorneys or lawyers to discuss a paternity case, divorce, modification, or the appeal of a final judgment please call us on (786)539-4935.

What Can A Court Do When a Parent Refuses To Keep The Court Ordered Time-sharing Schedule Regarding Custody and Visitation?

October 14, 2015 by  
Filed under Uncategorized

 
 
 
 
The relevant portion of Florida Statute Section 61.13 spells out what the Court can do when a parent takes time-sharing, custody, and visitation into their own hands by defying a court ordered parenting plan without proper reason to do so.  If a parent refuses to keep the court ordered time-sharing schedule a motion for enforcement and contempt can be filed against them, set for hearing, and ruled on by the court.  There are rules of court that must be followed to do so properly and make all of the remedies specified in the Statute available.
 
Florida Statute Section 61.13 specifies that the court:
1. Shall, after calculating the amount of time-sharing improperly denied, award the parent denied time a sufficient amount of extra time-sharing to compensate for the time-sharing missed, and such time-sharing shall be ordered as expeditiously as possible in a manner consistent with the best interests of the child and scheduled in a manner that is convenient for the parent deprived of time-sharing. In ordering any makeup time-sharing, the court shall schedule such time-sharing in a manner that is consistent with the best interests of the child or children and that is convenient for the nonoffending parent and at the expense of the noncompliant parent.
2. May order the parent who did not provide time-sharing or did not properly exercise time-sharing under the time-sharing schedule to pay reasonable court costs and attorney’s fees incurred by the nonoffending parent to enforce the time-sharing schedule.
3. May order the parent who did not provide time-sharing or did not properly exercise time-sharing under the time-sharing schedule to attend a parenting course approved by the judicial circuit.
4. May order the parent who did not provide time-sharing or did not properly exercise time-sharing under the time-sharing schedule to do community service if the order will not interfere with the welfare of the child.
5. May order the parent who did not provide time-sharing or did not properly exercise time-sharing under the time-sharing schedule to have the financial burden of promoting frequent and continuing contact when that parent and child reside further than 60 miles from the other parent.
6. May, upon the request of the parent who did not violate the time-sharing schedule, modify the parenting plan if modification is in the best interests of the child.
7. May impose any other reasonable sanction as a result of noncompliance.

 
The statute also states that a person who violates the subsection may be punished by contempt of court or other remedies as the court deems appropriate.
 
If you are dealing with a denial of court ordered time-sharing, custody, and visitation, arrange a consultation with one of our lawyers and attorneys on (786) 539-4935 so we can try to help you resolve the situation.

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