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.

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.

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.

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.

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.

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.

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.

Florida courts generally presume that all assets and liabilities incurred after the exact date you get married are marital for purposes of equitable distribution in a dissolution of marriage proceeding. However, if you are a spouse with the premarital property and feel your husband is not entitled to share in that asset, look to the example mentioned above, you can defeat this presumption by a showing of why the assets and liabilities are non-marital. Because the division of assets and liabilities is one of the major concerns when couples are going through a divorce, it is a great idea to draft a list of all assets and liabilities and label them either marital or non-marital before the dissolution proceeding begins – this could save you a lot of time later on. To help you and the courts decided categorization, the Florida Legislature has enacted a statute that creates a list of assets and liabilities that are considered marital or non-marital.

Martial assets and liabilities include: (1) assets and liabilities incurred during marriage, either individually or both spouses; (2) increased value and appreciation of non-martial assets due to the efforts of either party during the marriage or because marital funds contributed to that increased value; (3) gifts one spouse gives to the other during that marriage; and (4) all vested and non-vested benefits, rights, and funds that came due during the marriage (including retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans). It is also presumed that all real and personal property held as tenants by the entirety is marital, regardless of whether the property was purchased before or during marriage.

Nonmarital assets and liabilities include the following: (1) assets and liabilities incurred before you got married; (2) assets acquired individually by either spouse by non-interspousal gift, bequest, devise, or descent, or any exchange for these assets; (3) all income received from non-marital assets during the marriage unless that income was used or relied on by the spouses as a marital asset; (4) assets excluded based on a valid written agreement made by the parties (think: pre-nuptial agreement!); and (5) liabilities incurred by one spouse as a result of the other’s forgery or unauthorized signature of that spouse’s name.

In Florida, all assets obtained during marriage will be considered marital until the date the parties enter into a valid separation agreement (that may include a different date to consider) or the date a petition for dissolution of marriage is filed with the court. If you are in the beginning stages of a divorce, consult with an attorney to know what your rights are in regards to your marital and non-marital property.

In Florida, an unmarried biological father has a right to assert his claim of paternity and obtain notice of a mother’s relinquishing of parental rights. But, to preserve these rights, the putative father must follow proper Florida procedure. In order for the putative father to preserve his right to notice and consent to an adoption, he must file a notarized claim of paternity form with the Florida Putative Father Registry which is kept by the Office of Vital Statistics of the Department of Health. When a putative father submits his paternity form to the Office of Vital Statistics, he consents to testing of his DNA as proof of being the father.

Timing of the biological father’s submission is also very important. To receive proper notice and reserve his ability to consent to the mother’s choices, the claim can be filed at any time before the birth, but may not be filed after the date the mother files a petition for termination of parental rights. For example, if three days after the birth, the mother decides to relinquish her parental rights, and the biological father has failed to submit a notarized claim of paternity, he has essentially waived his parental rights to be notified and provide consent to the mother’s decision. In Florida, the putative father should also realize that the interests of the state, the mother, the child, and the presumable adoptive parents outweigh his interests if he fails to take timely action to establish his relationship with the child.

If you are an unmarried man expecting a child with your significant other, consult an attorney to guarantee that your rights are properly safeguarded.

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.

Consider this: ten years ago, you graduated from University of Miami, top of your class, and you were well on your way to earning your degree to become a nurse anesthetist. But, before you could finish, you got married and made the decision to put your education and career path on hold to raise a family. You wouldn’t change that decision for the world, but now, it’s ten years later, your marriage has ended, and you have no way to support yourself, having relied on your spouse for generating all of the family’s income. Ignoring your “limitations,” you take control by going back to finish school and enter the work force. In Florida, the court may grant rehabilitative alimony for a limited period of time to assist you in regaining yours status as a self-supporter.

Rehabilitative alimony forces one spouse to pay for the other to obtain a skill, education, or rehabilitation so that he or she can eventually support his or her self – an ability they lost or never had before or during the marriage. If you seek rehabilitative alimony, it is important that during the dissolution proceeding you present detailed evidence demonstrating the cost of completing your education, your prospects of future employment, and the amount of time you will need to obtain the income you need. This “plan,” must be credible and adequate, so it is important to make it as accurate as possible.

In Florida, there is an important limitation on rehabilitative alimony – it does not act as a substitute for unemployment compensation or retirement benefits, but lasts only until the receiving spouse can be sufficiently trained for employment and no longer relies on the other spouse’s funds for support. Take the opening hypothetical, for example. You have presented to the court, during your divorce proceeding, a plan that includes going back to college for two years to earn your nursing degree including an additional year to find the right job that will be well-compensated. Taken together, the court may award rehabilitative alimony for up to 3 years from your ex-spouse.

To discuss the need for rehabilitative alimony during your dissolution proceeding, or to create an adequate rehabilitative alimony plan to present to the court, please consult an attorney.

The factors a Florida court looks at to determine whether marital assets should be equitably distributed include: (1) how much of a contribution each spouse makes to the marriage (which includes care and education of the couple’s kids or work as a homemaker); (2) each party’s economic position; (3) how long the marriage has lasted; (4) whether the educational goals of either spouse has been interrupted; (5) whether one spouse has personally contributed to the other spouse’s career or educational goals; (6) whether one spouse wants to keep assets in their same form without any interference; (7) each spouse’s contribution to acquiring, enhancing, and production of income, as well as the improvement of both the marital and nonmarital assets (8) whether one spouse wants to keep the marital home as a residence for any dependent children; (9) whether either party intentionally dissipated, wasted, depleted, or destroyed marital assets after filing for divorce or two years before filing for divorce; and (10) all other factors needed by the court to determine a fair and equitable distribution.

Martial fault, although unlisted within the Florida statute, may play a part in the distribution of your marital assets. It is not listed within the statute because distribution based on one spouse’s “fault” would essentially reward the innocent spouse and punish the offending spouse. According to the Florida Supreme Court, the purposes of equitable distribution is not to punish a philandering spouse overturning a trial court’s award of 97% of the marital assets to a wife whose husband committed adultery. However, showing evidence that one spouse has cheated on the other is relevant when it demonstrates that the adulterer has depleted marital resources. For example, one spouse using the couple’s marital funds to further his or her adulterous behavior can be used against them in a court’s determination of equitable distribution. A trial court can even assign the depleted funds to the adulterous spouse as part of that spouse’s equitable distribution. See Romano v. Romano, 632 So.2d 207 (Fla. 4th DCA 1994). A spouse who wishes to assert this ground must demonstrate the causal connection between the other spouse’s adulterous misconduct and the couple’s financial circumstances. This may prove to be an advantageous loophole for some!

For more information about Florida’s equitable distribution of marital assets, please consult an attorney.

Not all family law proceedings are made public. Florida, as a matter of public policy, has certainly made specific civil proceedings confidential, such as adoptions, actions to determine paternity, and juvenile proceedings. And while some states, like California, have taken the extra step to limit public access to divorce proceedings, Florida has not taken that stance finding that a presumption of openness must apply to dissolution proceedings in the same way it applies to other civil proceedings. Furthermore, if you find yourself going through a public divorce, even an agreement between you and your soon-to-be ex-spouse to keep the records private cannot overcome this presumption because parties seeking dissolution of marriage are simply not entitled to private proceedings.

I know what you’re thinking – is it impossible to have my divorce proceeding records sealed? Although it may seem that way, the Florida Supreme Court has stated that closure of court records may occur when it is absolutely necessary to comply with well established public policy that has been laid out in the Florida Constitution, statutes, rules, and case law. As it pertains to dissolution proceedings in Florida, sealing such court records have been necessary to avoid substantial injury to innocent third parties, oftentimes children, when substantial compelling circumstances have been demonstrated. It is intended that this exception be applied to protect the interest of minor children from offensive testimony and to protect children in a divorce proceeding, in general. The party wishing to seal the records has the burden to demonstrate that closure is needed to protect the child.

If you wish to seal your dissolution records, you have to make a request to the circuit court in the form of a written motion, such as a “Motion to Make Court Records Confidential.” This motion must: (1) identify the exact records you wish to make confidential without revealing the confidential information and (2) explain your basis for making these records private. In Florida, any court record that is subject to this motion will be treated as confidential until a ruling by the court has been made. It should be noted, however, that keeping your public dissolution proceedings private in Florida is an extremely difficult burden to overcome and judges have discretion in their decision to grant confidentiality. If you feel you have a strong reason to seal your records, consult with an attorney to discuss your full options.

It was your fifth year as a married couple, and to your surprise, your husband brought home a puppy named Spot. Over the next several years, both you and your husband walked the dog, fed him, and played with him. In return, Spot provided both of you with love and affection, and even protected you on the mean streets of Miami. In fact, you all grew quite attached to one another. However, you and your husband are now going through a divorce and you have moved to Fort Lauderdale. In addition to asking the Court to divide the marital assets, you also want the court to determine who gets custody of and/or visitation with Spot. Is there any fair way to do this when both of Spot’s owners are going their separate ways?

It was Florida’s landmark decision in Bennett v. Bennett, which held that although “a dog may be considered by many to be a member of the family, under Florida law, animals are considered to be personal property.” 655 So. 2d 109, 111 (Fla. 1st DCA 1995). In that case, the trial court awarded “custody” or the parties’ dog to the husband and gave visitation rights to the wife. After the judgment was rendered, the wife filed a motion for a change in custody, arguing that her ex-husband was interfering with her visitation rights. And although the trial court granted the wife’s motion, effectively giving her visitation with the dog every other month, Florida’s First District Court of Appeal reversed it in Bennett v. Bennett. This decision put a “nail in the coffin” to the idea that a family pet could garner custody and visitation rights (like a child) after its owners’ divorce. In line with this decision, because a dog is personal property, a Court must award possession of the animal pursuant to the dictates of Florida’s equitable distribution statute. The Bennett court reasoned that this is the appropriate outcome because no authority in Florida case or statutory law enables a trial court to grant custody or visitation pertaining to personal property.

It is true that several other states have given family pets a “special status” within divorce proceedings; the Bennett court believed this course was “unwise.” According to the Bennett court, in Florida, the courts are already overwhelmed with pending family law matters involving humans (custody, visitation, child support, etc.), doing so with animals will prove even more burdensome by adding to the already overworked and understaffed court system.

To go back to our hypothetical from the introduction, it would be wise to circumvent the court when establishing custody rights to your pet. To be safe, before the conclusion of your divorce trial, create a written agreement laying out custody of and visitation with Spot. If you leave the matter in the hands of the court, Spot will just be considered another piece of property that needs to be divided.

If you are going through a divorce and are concerned about the custody of your pet, consult an attorney to consider your options.

Update: NBC'sThe Today Show just ran a very interesting story about this topic. If you are interested in learning more, please click here.

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.