Florida Family Lawyer Blog

Many couples going through divorce find solace in playing the blame game—“I am getting a divorce because my spouse did this, that, and the other!” But just how far can that get you? In Florida, it probably won’t get you that far, and placing blame on your spouse, who is a party to your divorce proceeding, simply may not be relevant. That is because in cities like Fort Lauderdale, Florida, and in the state of Florida in general, divorces are based on a “no fault” premise. The Florida legislature, like in many states through the country, has essentially made the “fault” inquiry during a divorce proceeding obsolete because it allows either party to seek divorce without a showing of cause. In Florida, the magic words to plead in your petition for divorce are that the marriage is “irretrievably broken.” Pleading “my husband cheated on me (adultery)” will likely get you nowhere!

That being said, conduct such as adultery, which may in fact “cause” one party to initiate a divorce, can impact other determinations raised during the divorce proceeding itself. Easily stated, fault may not be grounds for divorce in Florida, but it may be relevant to other determinations the court may be forced to make. Specifically, in Florida, one party’s adultery may have significant implications for divorces that include child custody battles, equitable division of marital assets, and distribution of alimony. In our next blog entry (Part II), we will discuss how fault may affect the latter two categories. But for now, we will address how a party’s “fault” may impact child custody battles that increasingly occur during dissolution proceedings.

In child custody battles throughout Florida, before the court determines which parent should obtain custody of the child, the court must consider the “moral fitness” of a parent and what is in “the child’s best interests.” For this step, the court may consider both parent’s sexual conduct and whether the conduct had or is reasonably likely to have an adverse impact on the child. If adultery or marital misconduct is likely to have an negative effect on a child’s best interests, that court may take it into consideration when making its decision. Please notice the limitations of this standard, however. While the court is allowed to consider a party’s adultery or marital misconduct, such conduct will not necessarily establish that a parent is unfit to obtain custody. While other factors may be considered, and the determination of custody is within the sole discretion of the court, the scales may tip against an adulterer if adultery has a negative effect on the child. But even if the court determines that a parent’s adultery has had an adverse effect on the child, other factors, such as, cruelty, neglect and parental unfitness exhibited by the other parent may be present to tip scales back in favor of award of custody to the adulterous parent.

As Florida’s case law makes emphatically clear, what is in “the child’s best interests” is an extremely fact-sensitive inquiry. If the court does decide to base its decision to award child custody to one parent and not the other due to a party’s marital misconduct or adultery, that finding must be thoroughly explained on the record. If you are going through a divorce due to your spouse’s marital misconduct, and you believe that it has negatively affected your child, remember, the best advice would be to consult you divorce lawyer to discuss how to properly obtain custody. Please stay tuned for our next blog entry which will discuss how a spouse’s marital misconduct may affect the equitable distribution of assets and alimony awards.

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

Posted In: Child Custody , Child Support , Equitable Distribution , No Fault Divorce

Bookmark:

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

Bookmark:

It’s been six months since you have seen your husband. You want to file for divorce, but you have no idea where he is. What options are available to you when Florida law requires that you serve your husband with divorce papers, even if you can’t find him? The answer is simple: constructive service of process. In Florida, after making diligent and reasonable inquiry into the whereabouts of your husband and you still cannot locate him to serve him in person, you may “constructively” put your husband on notice of the pending suit by following the steps below, so your dissolution may proceed.

If you find yourself in the situation hypothesized above, the first step to take is to make a reasonable search entailing some of the search procedures outlined in this Affidavit of Diligent Search and Inquiry. Next, file an Affidavit of Diligent Search and Inquiry along with your Notice of Action for Dissolution of Marriage. The affidavit, which includes a checklist of places you can look to gather information to locate your husband, ensures that you have made a serious effort to find your husband’s location. Both the affidavit and Notice of Action for Dissolution should be filed in the circuit court in the county where your petition for dissolution of marriage is filed. So, if you petitioned for divorce in Fort Lauderdale, Florida, you would file your affidavit and notice with the circuit court in Broward County. If the court grants you publication of process, the next step would be to publish notice of the dissolution proceeding once a week, for four (4) consecutive weeks, in a newspaper that is published within the county – here it would be a Broward County newspaper such as the Fort Lauderdale Sun Sentinel. After completing this process, the dissolution may proceed, with or without your husband. However, once the divorce is resolved, other problems may rise when you cannot find the father, such as notifying him of your intent to relocating your child more than 50 miles away from your current address.

Assuming your husband never showed up to the divorce proceeding and the court finds it is in the best interest of the child to do so, you would most likely be awarded full residential custody of your child. If that award granted no visitation rights to the father, your husband, then you would also most likely be able to move more than 50 miles away without telling him because he was not granted visitation rights to begin with.

However, in a different scenario where the father was involved in the divorce and was granted visitation rights with the child, and you decide to move from Fort Lauderdale, Florida to Tampa, Florida, which is more than 50 miles away, you would have to serve your husband with notice of your intent to relocate.

Recently, a visitor to our blog posted a question as to what process should she follow if after the father was initially granted visitation but since that time has taken off and the wife is unable to locate the father. In Florida, there is no specific statute determining what proper notice consists of when dealing with service of a notice to relocate upon the father who can’t be found, but it may be in your best interest to rely on what is the accepted practice for constructive service (service by publication) in family law, like in a petition for dissolution of marriage (see the example mentioned in the previous paragraph). This problem may be avoided if the visitation agreement contains a provision including an address for both the mother and the father, which serves as the official address to provide notice to the other party. By stipulating in advance what is the proper address to provide notice, this problem is solved before it even starts.

If you wish to relocate more than 50 miles away from your current address and your husband does have visitation rights, but you have not seen or been able to locate him after diligent search and inquiry, your best bet would be to consult an attorney to consider your options for possible constructive service.

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

Posted In: Child Custody , Divorce , Relocation of Child After Divorce

Bookmark:

The awarding of child custody is of prime concern to parents going through divorce. In Florida, the custody of your child is determined by seven simple words: “best interest and welfare of the child.” While it is the parents who initiated the divorce, from the court’s point of view, it is often the rights of the child that dictates child custody determinations. What if you are the parent who is better suited to support the child financially? Does this give you an advantage in obtaining residential custody of the child or children? In Florida, the fact a child would be more financially secure with one parent as opposed to the other parent is not a controlling factor in determining custody rights.

It’s not hard to consider a situation where spouses are going through divorce, they have children, but one parent makes substantially more money than the other. Take, for example a situation where the father is an executive of a corporation with an annual salary in excess of $250,000.00, and the mother is a homemaker who works really hard but does not earn her own income. In an economically driven society, some tend to think that the more money you make, the better you will be able to provide for the best interests and welfare of your children.

The truth is, even though one parent may bring home more money than the other, in most cases, both parents are still able to provide for a child’s reasonable needs. And although money is important in raising a child, especially in recent years, the courts also look to a parent’s ability to provide for a child’s personal, emotional, and social welfare as well as providing for a child’s material welfare.

If you are a parent going through a divorce, but know you make less money than your spouse, there are other important factors to consider in the issue of determining custody. Rather than spending time worrying about your financial situation, spend time detailing the factors the court will consider, such as: (1) character and moral conduct; (2) mental health; (3) the proposed home environment for the child; (4) character of others living in the proposed home of the child; (5) ability to maintain continuity in the child’s home; (6) parent’s work schedule; (7) and the effects, if any, that an interracial marriage may have on the child. And while no single factor alone is indicative of how the court will rule, it’s important to look at all of them and plan accordingly. Together, these factors comprise the analysis by which a court will determine what is in the best interest of the child when deciding the issue of residential custody.

In such cases where there is a significant disparity of income between one parent and the other the court will often mitigate that difference with awards of child support and alimony.

If you need help discussing the custody issues in your divorce, consult an attorney.

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

Posted In: Child Custody , Divorce

Bookmark:

In a previous post we discussed formulating an agreement between you and your ex-spouse when you want to move your minor child more than 50 miles away after residency has been determined in dissolution of marriage proceeding (your divorce). In that example, we said that the primary residential parent is living in Fort Lauderdale, and she wanted to move with her child to northern Florida. Let’s use that same example. However, instead of formulating an agreement, mom realizes she will never be able to come to a complete, written agreement with her ex-spouse concerning the relocation of her child. Rest assured, there is another avenue at her disposal affording her the opportunity to legally relocate to northern Florida with her child.

In Florida, unless there is a written agreement between the parents concerning the relocation of their minor child, a mother who is entitled to primary residency of this child is permitted to take other steps to ensure her notification to the father is proper. Mom’s first step must be to notify the other parent of the proposed relocation of the child’s principal residence by preparing a Notice of Intent to Relocate. Here is a sample one.. Such notices must conform to the Florida Statutes, therefore, please look to the our sample to ensure proper compliance with Florida laws.

To encourage resolution without court involvement, Florida provides that the mother should first serve the notice upon the former husband. The mother should only file with the court if her ex-husband objects. When first serving it upon the father, her official notice should include a Certificate of Filing Notice of Intent to Relocate, which certifies the date it was served. And finally, absent a pending court action, the mom can serve this notice via certified mail, restricted delivery, with a return receipt requested.

After your notice has been served, the non-residential parent has 30 days to object. If the non-residential parent fails to object within this time-frame, the relocation is permissible. However, if the non-residential parent, the father in this case, does object within the 30 days, he must state the specific reasons to deny the relocation, which must include the amount of involvement he has in the child’s life. It is at this point, the court must get involved. If the father files an objection, the mother now must rely on the court, and she has the burden to initiate court proceedings to obtain the court’s permission to relocate the child.

If you are thinking about relocating your child more than fifty miles away after a dissolution, please contact an attorney to consider all your options.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Child Custody , Divorce , Relocation of Child After Divorce

Bookmark:

When you are divorced in Florida and you are the primary residential parent to a child and your ex-spouse has visitation rights, relocating your child to a new principal residence more than 50 miles away from your previous residence has many implications for you and every other person entitled to visitation with your child. Failure to comply may lead to adverse results. Take, for example, this scenario:

You have been divorced for 3 years, you have a minor child, and you are the primary residential parent by court designation. Since the divorce, you have lived in the same house in Fort Lauderdale, Florida, but now you feel it’s time to move. Whether moving for a new job, a new location, or a better investment opportunity, you have decided to pick up and move you and your child to northern Florida. How do you go about relocating with your child without running afoul of the law? One of the most efficient ways of handling relocation is crafting a relocation agreement with the secondary residential parent.

Create a relocation agreement. The primary residential parent, and the secondary residential parent may enter into a written agreement before moving more than 50 miles away. However, the agreement must: (1) consent to the relocation; (2) define visitation rights for the non-relocating parent; and (3) describe any transportation arrangements that may be necessary for proper visitation. If you have an existing court order that relates to the child’s primary residence or visitation, you must seek ratification of the agreement by court order, which will evaluate the best interest of the child. Furthermore, a relocation agreement may address the added cost to the non-relocating secondary residential parent for travel expenses related to visitation with the child.

While there are other avenues to follow when relocating more than 50 miles from Fort Lauderdale, or any other Florida town, a relocation agreement may be the best method for resolving a potentially thorny matter.

For more information about relocation agreements, or if you need assistance drafting one, please contact an attorney.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Child Custody , Divorce , Relocation of Child After Divorce

Bookmark:

After a divorce, the parent (father or mother) who is not living with the child is the noncustodial parent. Both parents, however, have a legal responsibility to financial care for the child. The custodial parent is the father or mother or caretaker with whom the child lives and is responsible for the child's basic needs.

Posted by Koch & Trushin | Permalink | Email This Post

Posted In: Child Custody , Divorce , Glossary of Terms

Bookmark:

The payment of child support in Florida and the right to visitation of your children are not reciprocal rights, just because a spouse fails to pay court-ordered child support does not mean the spouse with primary custodial rights can simply withhold visitation as a punishment for the other spouse’s failure to pay child support. In Florida, parents must comply with court ordered visitations.

Picture this – you are a divorced woman, you have a son who is 10 years old, you collect child support and alimony from your former husband whom you share visitation rights with. One day, your spouse decides to stop paying child support. What do you do? I know your first instinct may be to withhold visitation rights until he pays up, right? WRONG! Although this may seem perfectly logical and may actually induce payment in some situations, in Florida, this is strictly prohibited. Don’t fall into the trap, or the court may order the custodial parent to pay reasonable court costs and attorney's fees incurred by the noncustodial parent to enforce their visitation rights or make up improperly denied visitation.

Other sanctions the court may impose on a custodial parent for failing to abide by a court-ordered visitation schedule includes: 1) You may be ordered to attend parenting classes; 2) You may be required to conduct community service; 3) You may be ordered to pay the travel costs of the non-custodial parent if they reside further than 60 miles away; 4) The court may alter the custody arrangement changing rotating custody, the primary residence of the child, and even alter primary custody of the child upon a petition by the noncustodial parent, only if such a ruling is in the best interests of the child; or 5) You may be ordered by the court to undertake some other type of sanction left to the discretion of the judge.

The lesson to be learned is, don’t upset the apple cart! In Florida, by withholding visitation from a non-custodial parent, even if that parent has failed to pay child support, you are exposing yourself to a number of potential sanctions that will cost you more money, may result in spending more of your time, and may also result in a reduction in your own child visitation rights.

I know what your thinking – HOW UNFAIR! And you may be right, but there are numerous remedies in Florida for deadbeat parents. We will discuss such remedies in our next entry. Stay tuned!

For more advice on the appropriate steps to take consult with an attorney.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Child Custody , Divorce

Bookmark: