Florida Family Lawyer Blog

Sometimes a grandparent may come to the sad conclusion their grandchild’s parent is an unfit parent. In Florida, when the court determines child custody, a nonparent, such as a grandparent, may only be awarded custody of a child when clear and convincing evidence has been presented demonstrating that the child’s mother or father, or both are unfit and threaten the welfare of the child. Why is this such a hard burden for grandparents to overcome? Courts have repeatedly determined that parents have a natural and legal right to the custody of their children which the Constitution protects. Depriving parents of their natural right to parent is a drastic measure and in such circumstances the courts often proceed with caution.

The first question which must be answered is whether grandparents have standing to bring a claim for custody when the child’s parents, although allegedly unfit to parent, have not given up their custody of the child? In Florida, although grandparents do lack standing to bring a custody action against a child’s parents where the parents have not relinquished custody, if the grandparent seeks custody of their grandchild during a divorce or dependency action, grandparents may have a right to intervene. In a divorce proceeding, a grandparent cannot institute a separate cause of action to obtain custody of the grandchild, but may only be granted a right to intervene. However, a grandparent may separately petition for primary residential custody of his or her grandchild through a dependency proceeding. In this dependency proceeding, the grandparents may only be awarded custody if the court first determines the child is, in fact, a “dependent.”

The next, and more difficult step for the grandparent, is to establish why he or she should have custody of the child rather than the natural parent. In making the determination of whether a nonparent should obtain custody of a child rather than the natural parents, the evidence must clearly and convincingly demonstrate that the parent is “unfit,” meaning they lack the adequate ability to care for their child. A court must then decide whether it is in the child’s “best interests” to remain with his or her natural parent or whether it would be better for the child to live with the grandparent. The bottom line is this – the grandparents must prove to the court that the child’s parents are unfit in some significant way! Because the right to parent a child is a fundamental right, the courts will not intervene unless there is a clear and convincing showing that significant harm to the child is threatened if the parent retains custody. In evaluating the fitness of the parent the court will look to several factors, including: (1) parent’s moral unfitness (and if this bears on the child’s welfare – including if parent’s sexual conduct has had an adverse impact on the child); (2) whether the parent has a clear pattern of irresponsibility in the parental role; (3) the parent’s health, both mental and emotional; (4) any sign of alcohol or drug abuse; and (5) adultery or marital misconduct (but it must have a direct affect on the child). It is up to the a grandparent to clearly and convincingly show evidence of the parents’ unfitness (using these factors as guidance), and both parents are found by the court to be unfit, the court will award custody to a close relative who is fit, ready, willing, and able to maintain custody of the child– which in this example, is the grandparent.

There are two important caveats a grandparent of a child whose parents are unfit must recognize. First, where children are of sufficient age and intelligence, Florida courts have given credence to the child’s own preference in its determination of whether to place the child with his or her natural parents or a nonparent, like the child’s grandparent. But it is important to realize that this is just one factor the court will look to, and in no way controls that court’s final decision. And second, a court has the option to only award a grandparent temporary custody until the parent can establish that they are “fit” to parent their child.

Therefore, if you are a grandparent who believes that you should have custody of your grandchild due to unfit parents, it would be best to consult an attorney to establish a proper strategy to accomplish that goal.

Posted by Bradley H. Trushin | Permalink | Email This Post

Posted In: Child Custody

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It’s a simple fact that after divorce, circumstances between parties tend to change. A former husband and wife who have a 10-year old child together and went through a divorce 3 years ago, and obtained a child support order at the conclusion of their dissolution proceeding are in a different place in their lives and might even be earning substantially more or less money years later. This exact situation calls into question the appropriateness of a child support award that was based on parental income from three years ago. One of the most common issues family law practitioners deal with is the modification of child support orders. When awarding child support, Florida courts follow rigid guidelines to determine the income of each parent, how much each party can contribute, and allocating a support award based on total income, the proportional contribution of each parent to that income and the number of children the parties have together. Here is Florida’s Child Support Guideline Worksheet to get a clearer picture. However, because years may pass, and circumstances may change, Florida courts allow a party to petition for a modification of child support, but to do so that parent must plead that there have been substantial changes in circumstances in the payor parent’s income after the original order of child support was awarded.

The first step in a petition to modify a child support order based on a significant change in circumstances is to file a supplemental Petition for Modification of Child Support with the same court that entered your original child support order. A sample can be found here. The Florida Child Support Guideline Worksheet provides an exact estimate of monthly support a parent must pay depending on total income of parents, the proportional contribution of each parent to that income, the number of children they have together, and other individual circumstances. Information you will need to complete this form includes but is not limited to proof of monthly incomes, insurance information, proof of expenses and child care information. A situation warranting a modification of child support obligations may be the result of one party’s significant change in income. For example, if a non-custodial father in Fort Lauderdale, who was previously ordered to pay his ex-wife a specified amount of child support as per the Florida guidelines, incurs a dramatic increase to his income, the ex-wife may petition the court for a modification of child support because total parental income is the primary factor utilized by the Court when determining the amount of child support required. Therefore, the father’s significant increase in income has thereby increased the total income of the parents.

At the outset of this petition, it is important to note that the court will limit its ability to modify your child support order. This limitation is based on total parental income and significant changes that have been made thereto. A substantial change in circumstances based on change of income may be demonstrated where the party seeking the modification is able to prove the other parent’s income increased to such a degree where the difference between the existing monthly obligation and the amount provided for under the guidelines has changed by at least 15% or $50, whichever of the two is greater. If this qualification is not met, a change in income will not be proof of a substantial change in circumstances.

In modifying the child support obligation, the court will continue to use the child support guidelines to determine the new amount that should be awarded. Because the amount of monthly financial need is based on Florida statutes, the court will still take into account the total financial income of the parents and the number of children to reach the figure. If you wish to modify your spouse’s child support obligations due to his or her substantial increase in income, please consult an attorney.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Child Support

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In the previous post, we discussed that Florida law allows a party to a divorce proceeding to make a claim for attorney’s fees from the opposing party. More specifically, if one party makes such a request, the court will primarily consider the financial resources of both parties to make an order for one party to pay a reasonable amount to the other party for attorney’s fees, suit money, and costs. Because the relative financial resources of both parties to a divorce proceeding is the principal criterion the court examines in making this determination, I believe it is essential explore the concept of relative financial positions more fully.

Florida courts have repeatedly stated that when looking to the relative financial position of the parties, the first two questions which must be answered are: (1) does one party need attorney’s fees from the opposing party to pursue this divorce?; and (2) does the other party have the ability to pay for the other’s attorney’s fees? To make this determination, the court will require each party make an evidentiary showing of their respective assets and liabilities and make a comparison of each party’s independent financial resources. Recall from the last post that this comparison will not take into account money that a party’s family and friends are willing to share as aid. Also recall that it is not necessary that one party be completely unable to pay attorney’s fees in order for the other party to pay for them; it is only necessary that the party requesting attorney’s fees be in a substantially inferior financial position. A calculation of each party’s independent financial resources takes into account all circumstances and resources, including benefits that significantly enhance one party’s financial position, net income (and income-earning abilities), and the extent of their financial liquidity (like if the party’s assets are readily available).

Imagine a common situation in many states, including Florida. A husband and wife had been married in Fort Lauderdale for 19 years. During their marriage, the husband worked full-time making a great yearly salary while his wife remained unemployed to take care of the family. On their 19th year of marriage, husband and wife decided to get a divorce. That same year, the husband received a $100,000 bonus at work. Realizing the disparity in income between both parties and her inability to afford counsel, the wife requested attorney’s fees from her husband during the dissolution proceeding. In a similar case decided in Florida, the husband was required to pay all of the wife’s attorney’s fees and costs in the dissolution proceeding.

In another scenario, Florida courts have been reluctant to deny attorney’s fees to a requesting party simply because he or she has assets (because those assets are not necessarily readily available). For example, attorney’s fees were awarded to a former wife who was in an inferior financial position to her husband, and who would have to invade her assets to pay attorney’s fees for a dissolution proceeding. Similarly, in another case, a former wife was entitled to attorney’s fees and costs, even when all marital assets were equally distributed and the wife was awarded permanent period alimony. That court awarded the former wife attorney’s fees rather than having her invade her capital assets to pay the litigation costs because it would decrease her income. Furthermore, the husband was in a position to pay for all his fees and her fees combined out of his current income without digging into any of his own assets or investments.

It becomes clear that income-earning abilities appear to be of primary concern when making a financial comparison of the parties when one party requests attorney’s fees from the other party in a divorce proceeding. If you are going through a divorce and are a party that is in a substantially inferior financial position, it would be wise to discuss making a request for attorney’s fees with your attorney.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Attorney's Fees , Divorce

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Pursuant to Florida statute, the court in a dissolution, child custody, or child support proceeding may order one party to pay a reasonable amount for the other party’s attorney’s fees. Furthermore, these fees may even include a party’s costs to maintain or defend any one of these proceedings, including enforcement or modification of support, custody or visitation. But in Florida, how does the court decide to award attorney’s fees and in what situations is it appropriate?

Awarding attorney’s fees is at the sole discretion of the judge, and in determining whether to award these fees to a party, the judge may consider the earning ability of the parties, the marital assets and liabilities each party obtained through the divorce proceeding, and those assets’ liquidity. It is important to note that in Florida applying for an award of attorney’s fees, suit money, or costs does not require additional support through corroborating expert testimony. Florida courts, through an order of attorney’s fees, ensure that both parties to a dissolution proceeding have the ability to be represented by competent counsel.

Although a judge looks to several factors when considering a motion for attorney’s fees or litigation expenses, the principal issue considered by the judge is the respective financial resources of each party. The primary elements of that issue include the requesting party’s inability to afford an attorney and the other party’s ability to pay for competent legal counsel. In Florida, courts will not order one party to pay the other party’s attorney’s fees in a divorce proceeding when both are on significantly equal footing with regard to their ability to pay their own legal expenses. This calculation does not include financial assistance that may be provided by family members or friends. However, it is not necessary that one spouse be totally unable to pay for legal expenses for the judge to require the other spouse to pay them. Furthermore, the determination of ordering one party to pay for the other’s legal expenses may also be made after the court considers the relative financial status of each party at the conclusion of a dissolution proceeding. Therefore, a spouse may not be entitled to legal fees where the “spouse in need’s” financial position was made equal to the other spouse through the award of alimony and equitable distribution of marital assets. The Florida statute which allows for the award of attorney’s fees in proceedings for dissolution of marriage, support, or child custody also requires the judge to consider other relevant factors in making his or her determination to order this award, including: (1) scope and history of litigation; (2) the proceeding’s duration; (3) each party’s merit in presenting their arguments; and (4) whether the litigation is being used as a means to harass the other party.

Other Considerations: Please keep in mind that there are several other factors the court will not look at in this determination for attorney’s fees. For example, it does not matter if one party prevails in the proceeding or if the party is to blame for the failure of the marriage (i.e., through adultery), the court will not consider these subjective factors in making its determination for attorney’s fees.

Settlement Offers: What if one party wants to settle before the proceeding gets more expensive but the other party, who will demonstrate need for attorney’s fees, wants the proceeding to continue? Well, there is no Florida case law or statute to suggest that a court will deny attorney’s fees in dissolution cases simply because one party failed to accept an offer of settlement, even if a refusal to accept was unreasonable.

Pre-marital contracts: Contract provisions, which are typically found in prenuptial agreements, which waive the right to attorney’s fees and suit money are given consideration by the court, but are not conclusive as to how the court will decide the matter. Therefore, the court considers contractual provisions along with all other pertinent conditions affecting the party’s need and ability to pay. For example, if one spouse had the other spouse sign a prenuptial agreement (a contract) before they got married, and that contract contained a provision stating that neither party would pay the other party’s legal costs in the event of divorce, the court must consider this in making its determination. However, if enforcing this provision would lead to fundamental unfairness, the agreement may not be binding and the court may exercise its discretion to award attorney’s fees.

Please stay tuned for the next post, where we will continue this discussion of awarding for attorney’s fees in dissolution proceedings.

Posted by Bradley H. Trushin | Permalink | Email This Post

Posted In: Attorney's Fees , Divorce

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Florida law dictates that the mother of a child born out of wedlock is automatically considered to be the legal parent who is required to provide support for her child. However, if a child’s parents are not married to each other when that child is born, Florida courts will not automatically presume a man is the biological father and thus recognize the father’s duties and financial obligations to the child unless paternity is legally established. Take, for instance, this example.

Eight months ago, Jane Smith was living with her boyfriend, John Doe. A couple of months after moving in, John was told by Jane that she was pregnant and she believed that they could raise the child together. However, one month before the baby was born, Jane and John broke up. When the baby was finally born, Jane felt she was entitled to child support from John because she believed him to be the biological father. Establishing paternity for children born out of wedlock is important to both the mother and child because it is essential for the child garnering the same rights as children born to married parents – including child support and inheritance.

For Jane and John, the easiest way to establish paternity would be to bypass a court proceeding and sign an affidavit saying the child belongs to both of them. When a mother completes the affidavit she attests that she was unwed at the time of the birth and that the man identified in the affidavit is the biological father of the child. When the man completes the affidavit of paternity, he swears he is the biological father of the child and he will be responsible for the medical and financial needs of the child until adulthood. But this is really only an option when the identity of the father is certain. This administrative procedure is most convenient because it can be performed at the birth hospital before the baby is discharged or at the local Child Support Enforcement Office. If completed at the hospital, the parents, like Jane and John, typically, do not have to pay a fee. But if done outside the hospital at the Child Support Enforcement Office, and Jane and John were from Fort Lauderdale or Miami, Florida, they could sign an affidavit at a Child Support Enforcement Office located in either Broward or Miami-Dade County.

But what if Jane was uncertain that John was actually the father because she got pregnant the month before he moved in with her, and she had also been seeing another man? She never told John about her uncertainties, but John eventually discovered these facts before the child was born. In this situation, although there is a possibility he is the father, John would most likely question whether he was the father, and signing an affidavit attesting to his paternity would probably not be in his best interest. In this situation, if Jane wants child support, she would most likely seek judicial help through the issuance of a court order to establish John’s paternity. Through judicial action, John can either sign legal documents establishing paternity or support, or both, which the court will then adopt as a stipulation, or the court may hold a hearing to establish paternity and support. If John fails to stipulate that he is the father, the court must hold a hearing to determine paternity of Jane’s child. In this hearing, the court may order genetic testing. If the court found John to be the child’s father, the court must then order support for the child.

In Florida, the child support guidelines that govern divorce proceedings also apply to determine, modify, or enforce child support for children born out of wedlock. This may include authorization of retroactive child support to the date when the parents did not live together in the same household with the child, but cannot exceed 24 months before the filing of the hearing to establish paternity. Therefore, if John failed to pay child support during the month before and the two months during the court ordered hearing to establish paternity, because the court determined John to be the child’s father, he must pay child support for those 3 months and for future child support expenditures.

If you are the mother and presumed father of a child born out of wedlock, consult an attorney to determine your child’s rights to financial and medical support.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Establishing Paternity

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In this previous post, we discussed Alex “A-Rod” Rodriguez’s pending divorce to his estranged wife, Cynthia, and the effects of a prenuptial agreement on her request for an equitable distribution of the marital assets. And, throughout the summer, the general public was kept riveted as to what would happen next and whether they would be privy to another bitter divorce proceeding involving a celebrity in the Miami courts. But fortunately for the Rodriquez family, the general public will be disappointed. On September 19th, A-Rod and his wife settled the case before any court-room battle could take place. The probable reason: an enforceable prenuptial agreement A-Rod had Cynthia sign before the two got married.

A recent article from the Boston Herald explains that A-Rod and his wife choosing to settle their dissolution proceeding before it ever entered the Miami court system is most likely due to a premarital contract, or prenuptial agreement (the terms of which the public may never know!). In Cynthia’s petition for dissolution of marriage, she argued for an equitable distribution of all the assets, as is Florida law absent an enforceable prenuptial agreement. However, we are sure it is A-Rod’s position as expressed in the prenuptial agreement that Cynthia should not be entitled to half of his income – she wasn’t responsible for his notoriety as a baseball superstar nor did she add to what he already earned before the marriage. This was the precise reason for the prenuptial agreement. As the article rightly hypothesizes, in the divorce settlement reached, most likely guided by the terms of the prenuptial agreement, A-Rod probably gave Cynthia their multimillion dollar home, its contents, a lump sum, and a nontaxable alimony payment of $1.5 million dollars.

While it is all too easy to speculate about the details of A-Rod’s divorce settlement agreement, the one sure thing that is beyond speculation, and more of an absolute, is what the baseball start must pay in child support. Child support obligations simply cannot be contracted away in a prenuptial agreement, and if they are, that portion of the agreement will be unenforceable. The couple’s two children live and attend school in South Florida with Cynthia. In Florida, guidelines as to how much child support a parent is obligated to pay are set forth within the Florida Statutes and is based on a proportional formula dependent on the incomes of both parents and the number of children between them. Because A-Rod makes well over $10 thousand a month, Florida law will require him to pay $2,228.00 a month for the first $10 thousand plus an additional 7.5% of his total yearly income that exceeds $10 thousand. In Florida, if the combined monthly income between both parents of two children is more than $10 thousand, then the courts will take 7.5% of the total yearly income to determine proper child support payment. Therefore, as the Boston Herald article states, if A-Rod makes $25 million, Cynthia will receive approximately $1.875 million in child support, yearly. However, if there is a significant change in A-Rod’s income, whether upward or downward, the award of child support can be modified upon a showing by the petitioning party that there has been a substantial change in circumstances concerning A-Rod’s income warranting a modification in child support and that such a change in child support will not hurt the children.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Child Support , Divorce , Prenuptial Agreements

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