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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.

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.

Parenting Plans Need to Be Specific

March 2, 2016 by  
Filed under Uncategorized

 

 

In  Magdiziak v. Sullivan, the Fifth District Court of Appeals for the State of Florida reversed a trial court decision because the parenting plan lacked the required specificity.

The Court quoted Florida Statute Section 61.13(2)(b) which follows and stated that the trial courts parenting plan was too general stating “For example, simply awarding the mother every other weekend do es not specify when the weekend starts and stops, and the history of this case casts doubt on the parties’ ability to work out the details for themselves. Other time-sharing provisions also lack specificity. It is in the best interests of the child, the parties, and the court to include such specifics to minimize future litigation.”  A parenting plan needs to be specific as to time-sharing (custody, visitation and exchange times) to comply with the law and be upheld on appeal.

Florida Statute Section 61.13(2)(b) provides:
A parenting plan approved by the court must, at a minimum,
describe in adequate detail how the parents will share and
be responsible for the daily tasks associated with the
upbringing of the child; the time-sharing schedule
arrangements that specify the time that the minor child will
spend with each parent; a designation of who will be
responsible for any and all forms of health care, school-
related matters including the address to be used for school-
boundary determination and registration, and other activities;
and the methods and technologies that the parents will use
to communicate with the child.

 

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.

Absent An Emergency Situation Parents Should Be Given An Opportunity To Be Heard Before Modifying Time-Sharing (Visitation/Custody)

September 18, 2015 by  
Filed under Uncategorized

 

 

In Wolfson v. Wolfson, The Third District Court Of Appeals reversed an order temporarily modifying time-sharing where both parents were not given the opportunity to be heard. The Court held that the Mother needed to be given the opportunity to be heard.

The Court reasoned that under Florida law, unless a party can prove modification is required by a substantial and material change in circumstances, and that the child’s best interest will be promoted by such a modification, a trial court should not disturb the child custody determinations made final by a judgment of dissolution of marriage. Generally, both parties must be given notice and an opportunity to be heard on the matter prior to any modification, unless there is an actual, demonstrated emergency situation, such as where a child is threatened with physical harm or is about to be improperly removed from the state. Even in such instances, every reasonable effort should be made to ensure both parties have an opportunity to be heard. To conduct a proper inquiry into these issues, both parties must generally be given the opportunity for a full hearing where the parties and their witnesses are given an opportunity to testify.

If you need to talk to a lawyer or attorney about modification of time-sharing, custody, visitation,  or parental responsibility please contact our office to arrange a consultation on (786)539-4935

A Court Must Generally Leave Open An Avenue For A Parent To Resume Parenting And Time-Sharing With The Child(ren) Even If It Awards Sole Parental Responsibility And Denies Time-Sharing

September 3, 2015 by  
Filed under Uncategorized

 

 

In Niekamp v. Niekamp, the Second District Court of Appeals ruled that the trial court erred in determining that it was in children’s best interests to deny a father  contact with children  without setting forth a schedule or benchmarks for reestablishing father’s parenting of the children in the future.  Consistent with its prior rulings and the general concepts of Florida Family Law the Court held that while it is sometimes appropriate to restrict a parents contact and access with their child(ren) in a divorce case the restricted parent should be given a key or avenue to reconnect with the child in the future setting forth the specific steps that the parent must take so that a parent and any successor judge knows what is expected of the parent.

If you need to talk to a lawyer or attorney about  time-sharing, custody, visitation,  or parental responsibility please contact our office to arrange a consultation on (786)539-4935

There Needs To Be A Substantial Change In Circumstances For A Petition For Modification Of Time-Sharing To Be Granted

August 28, 2015 by  
Filed under Uncategorized

 

In Blevins v. Blevins, the 5th District Court of Appeals held that because substantial competent evidence of substantial change in circumstances was not presented the trial court abused its discretion by granting former wife’s modification petition.

The Former Wife had sought modification based on the distance between her residence and the child’s school.   The Court ruled that the distance between the Former Wife’s residence and a child’s school was not a basis for modification of time-sharing where the location of parties’ residences was known at the time of the final judgment, when the trial court selected the former husband’s residence as a child’s legal address and address for school designation purposes.  Absent a substantial change in circumstances the trial court should not have granted a petition for modification of time-sharing.

If you want to modify time-sharing after a judgement has been entered it is important to present the right evidence to the court for it to rule in your favor and for its decision to be upheld based upon the best interests of the child and there having been a substantial change in circumstances.

If you need to talk to a lawyer or attorney about a modification of time-sharing please contact our office to arrange a consultation on (786)539-4935

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.