Children's Issues Flashcards
What is the definition of a “parenting plan”?
§ 61.046(14) –“Parenting plan” is a document created to govern the relationship between the parents relating to decisions that must be made regarding the minor child and must contain a time-sharing schedule for the parents and child. The issues concerning the minor child may include, but are not limited to, the child’s education, health care, and physical, social, and emotional well-being. In creating the plan, all circumstances between the parents, including their historic relationship, domestic violence, and other factors must be taken into consideration.
How is a parenting plan established?
61.046(14)(a)
-agreed to by parties and approved by court or
-established by court
What must all parenting plans include under Chapter 61?
61.046(14)(b)
-All PP must address jurisdiction issues
-UCCJEA
-ICARA( International Child Abduction
Action)
-PKPA (Parental Kidnapping
Preventing Act)
-Convention on the Civil Aspects of
International Child Abduction enacted
at the Hague on October 25, 1980)
For purposes of the UCCJEA, a judgment or order incorporating a PP is considered what kind of determination?
61.046(14)(c) - a child custody determination
For purposes of ICARA and Convention on the Civil Aspects of International Child Abduction enacted at the Hague on October 25, 1980, what does a PP establish?
61.046(14)(d) - rights of custody and rights of access
What are the minimum requirement of a PP approved by the Court?
61.13(2)(b)
1.Describe in adequate detail how the parents will share and be responsible for the daily tasks associated with the upbringing of the child;
2.Include the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent;
- Designate who will be responsible for:
a. Any and all forms of health care. If the court orders shared parental
responsibility over health care decisions, the parenting plan must provide that either parent may consent to mental health treatment for the child.
b. School-related matters, including the address to be used for school-boundary determination and registration.
c. Other activities; and
4.Describe in adequate detail the methods and technologies that the parents will use to communicate with the child.
What happened in the case of Hernandez v. Mendoza (4th DCA 2022 case)?
Here, the 4th reversed the FJ for failure to meet the minimum statutory requirements set forth in 61.13(2)(b) - where trial court ordered shared parental responsibility but failed to provide that either parent may consent to mental health treatment for the child.
What did the case of Webking v Webking (1st DCA 2022 case) stand for?
Another case where a trial court failed to indicate in the FJ where shared parental responsibility was awarded that either parent may consent to mental treatment for the child. Court explained that the provision requiring parenting plans with shared parental responsibility to include that either parent may consent to mental health treatment was enacted as part of comprehensive law concerning mental health and substance abuse & the importance of mental health for kids in a family law dispute.
Which statue gives power to courts and jurisdiction to enter PP?
61.13(2)(a)
The court may approve, grant, or modify a parenting plan, notwithstanding that the child is not physically present in this state at the time of filing any proceeding under this chapter, if it appears to the court that the child was removed from this state for the primary purpose of removing the child from the court’s jurisdiction in an attempt to avoid the court’s approval, creation, or modification of a parenting plan
Must a child be in the State of FL at time action initiated in order for court to have jur?
61.13(2)(a) - no, not if it appears to court that child was removed from state for primary purposed of removing child from court’s just to avoid court entering a PP
What does Cone v Cone Fl. Supreme Court case stand for?
That court’s have inherent jurisdiction over minor children to do that which is necessary to protect the child’s best interests and welfare
Is the Court required to accept an agreed PP provided by the parties?
Pagliaro v. Pagliaro - No, trial court is NOT bound by parent’s agreement or by opinions of expert
When do parties’ agreement on shared parental responsibility becoming binding?
Upon approval of court.
Wayno v. Wayno - trial court did not err in denying a motion to enforce a mediation agreement awarding shared parental responsibility bc the better practice is for court to be fully informed about welfare of children first.
Does court have jurisdiction to establish or approve a PP in a domestic violence action?
741.30 authorizes court to establish PP upon ISSUANCE of injunction but if injunction denied or dismissed say bye bye to PP -
What is 61.13(2)(c)
The court shall determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child AND in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act, EXCEPT that modification of a parenting plan and time-sharing schedule requires a showing of a substantial & material change of circumstances.
What happened in Hassenplug v. Hassenplug (2022 2nd DCA case)
Parents agreed on all parenting issues except school and tried that issue. 2nd DCA held that court need not address every statutory factor but at a minimum, it must find in its ruling on school designation is in the child’s best interest. Decision concerning child’s best interest is paramount and should have evidentiary support.
Is a Court delegating its authority when it adopts portions or all of party’s proposed FJ?
Dickson v. Curtis Fla. 3d DCA 2022 -no, so long as the proposed order does not substitute a thoughtful and independent analysis of the facts and law by the trial court
Can court delegate decision making authority to a parent?
No
Give an example of court delegating decision making authority to a parent.
Letting a Father’s time-sharing with the child be at the sole discretion of Mother. A court may not delegate its responsibility to determine time-sharing to a third party. To prevent this abdication, “a reasonable time-sharing schedule based on the parent’s individual circumstances must be created based on the exercise of the court’s discretion, not the other parent’s”
Is it error for trial court to allow one parent’s timesharing to be reinstated based upon other parent and a professionals input?
Yes - improper delegation of authority.
Can a court limit a parent’s timesharing to times the other parent expressly approves?
No - improper delegation of authority.
Is it error for trial court to allow Father two nights a week provided he advised Mother “in advance” which days he intends to take the child?
4th DCA overturned the decision finding that the TS schedule was unreasonable & reasoned that normal planning for weekend and other leisure activities between Mother and child together could be difficult and easily disrupted under such a schedule
Can court delegate decision making to child?
Obvi, no.
Can trial court allow under tenets of shared parental responsibility if a child does not desire to attend an extracurricular activity, the child shall not be required to attend?
No, that’s contradictory to the award of shared parental responsibility & courts have found that such provision improperly delegates parental decision-making authority to the minor children.
Can the court order a time-sharing plan which states that, if the 10 year old child “desires to spend less time with Former Wife, then he shall be allowed to do so?
No, impermissible delegation of decision-making authority to minor child.
Can court delegate decision making authority to a counselor or therapist?
No
Can a court enter a final judgment awarding Mother sole parental responsibility and provide: “The parties are ORDERED to continue to work with their respective therapists and with a Dr. on a therapeutic reunification plan, should he find that it is in the best interests of the children & reserve jurisdiction to readdress this time-sharing schedule upon notice by the Dr. that the reunification process has commenced or by Motion of either party when Court states it has considered all criteria in Florida Statutes 61.13 in making this decision?”
Nope - improper delegation of decision making authority to a third party.
Can court order that F not introduce children to paramour until their therapist approves?
Nope - improper delegation of authority.
What happened in Munoz v. Munoz (2nd DCA 2017)?
Court attempted a fancy TS schedule phasing Dad into kid’s lives but left it up to therapist as to when phase 2 and 3 begin.
Court also said mom can replace therapist anytime - which is in improper delegation of authority
Last, and most concerning, court never defined WHEN dad would get or would ever get overnight timesharing.
SIMILIAR TO BARRACK CASE IN 2021
What happened in Barrack v. Barrack (4th DCA 2021)
The 4th DCA reversed trial court order which delegated the issue of reestablishment of Father’s resumed time-sharing with the minor children to Mother and her selected therapists
SIMLIAR TO MUNOZ 2017 CASE
Can court delegate decision making authority to GAL?
Nope
Can court defer to GAL to recommend TS?
Under Florida Statutes, GALs may make recommendations and reports to the court, but such recommendations and reports are not binding on the parties. Courts may not delegate their statutory authority to determine visitation to GALs, attorneys, or experts
Can Court delegate decision making authority to parenting coordinator?
NOPE
HYPO - Parenting coordinator issued written report to court regarding parties, their relationship, witnesses, and incidents which precipitated both parties filing motions with the court and making recommendations. The court held hearings on the motions and made no significant findings or pronouncements at the hearing. The court then entered a written order characterizing the parenting coordinator’s recommendations as a “reasonable temporary solution,” essentially adopting the parenting coordinator’s report. Is this error?
Yes - although there may be circumstances in which a parenting coordinator can appropriately assist a trial court in carrying out the court’s responsibilities, it is never appropriate for a parenting coordinator to act as a fact-finder or otherwise perform judicial functions
Can court delegate decision making authority to mediator?
Nope
HYPO: The trial court’s order appointed a mediator to create a time-sharing schedule. The order stated “the mediator shall have absolute authority” to establish the schedule. Is this error?
Yes - court can order you to mediate ts issues but it can’t confer authority to mediator to resolve the issue.
Can court delegate decision making authority to social investigator?
Nope
Can court order TS and say that it is subject to social investigator’s recommendations?
No - this is error bc the Court effectively and improperly delegated the court’s authority to the investigator.
What are the presumptions in FL concerning TS and parental responsibility?
Rebuttable presumption the equal TS is in BIC - and must prove by preponderance of evidence that equal TS is not in best interest
What is the primary consideration in creating or modifying a PP?
61.13(2)(d)(3)
BEST INTEREST
What is the burden for modifying parental responsibility, PP or TS?
61.13(2)(d)(3) - substantial, material, change in circumstances AND a determination that the modification is in the best interests of the child.
Must the court make findings for each factor in determine best interest under 61.13?
Unless TS is agreed upon by parties THE COURR MUST EVALUATE ALL FACTORS NOW
What is the definition of shared parental responsibility?
61.046(17)
“Shared parental responsibility means a court-ordered relationship in which both parents retain full parental rights and responsibilities with respect to their child and in which both parents confer with each other so that major decisions affecting the welfare of the child will be determined jointly.”
What is the 5th DCA’s view on how disputes should be resolved when parents have shared parental responsibility?
If the parents reach an impasse, the dispute should be presented to the court for resolution. In that event, the court must resolve the impasse applying the best interests of the child test.
What is the 3rd & 4th DCA’s view on how disputes should be resolved when parents have shared parental responsibility?
The parties are to confer on such matters and reach agreement thereon. If the parties reach an impasse, then the dispute is presented to the court for resolution. The test to be applied is the best interests of the child. See § 61.13(2)(b)(1)
When should court award shared parental responsibility?
61.13(2)(c)(2)
The court shall order that the parental responsibility for a minor child be shared by both parents UNLESS the court finds that shared parental responsibility would be detrimental to the child
What creates a rebuttable presumption of detriment?
61.13(2)(c)(2)
Evidence that a parent has been convicted of a misdemeanor of the first degree or higher involving domestic violence, as defined in s. 741.28 and chapter 775, or meets the criteria of 39.806(1)(d), creates a rebuttable presumption of detriment to the child.
What happens if a rebuttable presumption arises due to evidence that parent has been convicted of a misdemeanor of 1st degree or high involving DV and it is but NOT rebutted?
If the presumption is not rebutted after the convicted parent is advised by the court that the presumption exists, shared parental responsibility, including time-sharing with the child, and decisions made regarding the child, may not be granted to the convicted parent.
If Court finds that shared parental would be detrimental, what may it do?
61.13(2)(c)(2)
It may order sole parental responsibility and make such arrangements for time-sharing as specified in the parenting plan as will best protect the child or abused spouse from further harm
Is a conviction necessary for court to consider dv or child abuse as evidence of detriment to child?
61.13(2)(c)(2)
No -
HYPO: in modification, court award sole parental decision making authority to Dad bc there was sufficient evidence to justify same based on Mom’s conduct but failed to make specific finding of detriment - is this error?
Yes - must have that specific finding.
61.13(2)(c)(2)
What is the definition of sole parental responsibility?
61.046(18) – “Sole parental responsibility” means a court-ordered relationship in which one parent makes decisions regarding the minor child.
When can court order sole parental responsibility?
Only when court finds that shared parental responsibility would be detrimental to the child
HYPO: In 2004, Mother obtained a temporary injunction against domestic violence against Father after she alleged
15 he employed inappropriate corporal punishment with the four children. The temporary injunction allowed Father regular unsupervised time-sharing with the children. The injunction was dissolved in July 2006. Shortly thereafter, Mother began a campaign to alienate Father from the children including refusing to allow Father to see the children, refusing to encourage the children to participate in regularly scheduled time-sharing, threatening Father with new domestic violence injunctions if he attended the children’s events, reporting to the Department of Children & Family Services that Father was sexually abusing the children, filing various police reports alleging Father was involved with criminal activities, and reporting that Father should be investigated in connection with a high-profile case involving the disappearance of a young girl from Northport. Mother refused to participate with the court-appointed parenting coordinator and filed complaints with the state against the court-appointed psychologists and social workers who were preparing a custody evaluation. What should court do?
Award Dad sole parental responsibility. The record supports the conclusion that Mother illegitimately used every tactic available to a parent who is legitimately concerned about the safety of her children in an effort to gain a tactical advantage in this custody case.”
HYPO: Father was hindering the stability of the children and engaged in a pattern of direct and indirect resistance regarding passports, schooling and medical issues relating to the children. Can court award Mom sole parental here?
Yes, with respect to medical and educational aspects of the child.
HYPO: trial court awards Mom sole parental decision but fails to make a finding of detriment. Father files appeal but does not file for rehearing. What is the outcome on appeal?
Husband failed to preserve the issue via a motion for rehearing and did not argue fundamental error on appeal
Can a court order sole parental responsibility without addressing timesharing?
It has been found to be contrary to Florida Statutes § 61.13(2)(b)2.b which provided that a court may order sole parental responsibility, with or without visitation rights, to the other parent when it is in the best interest of the minor child.
Will a parent’s adultery impact consideration for timesharing with children?
No, unless adultery has a negative effect on the children
Is a party required to plead for sole parental responsibility?
Appellate courts have found that awarding sole parental responsibility when it had not requested such relief in his pleadings or at trial to be error
Can court on its own order sole parental responsibility?
Court cannot go beyond a party’s pleading and cannot do so without finding that shared parental would be detrimental
HYPO: Trial court entered an order requiring children to attend Social Bridges program to repair their relationship with Father. Then, it entered a subsequent order giving Father sole parental responsibility, among other things, to facilitate attendance at Social Bridges. Father had not asked for any of that relief in his pleadings. What argument should mom make on appeal?
Mother’s due process rights were violated when trial court granted relief not requested in pleadings
Can court order decisions to one parent over specific responsibilities for kids?
61.13(2)(c)(2)(a)
Yes - In ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child’s welfare or may divide those responsibilities between the parties based on the best interests of the child. Areas of responsibility may include education, health care, and any other responsibilities that the court finds unique to a particular family
What is the difference between ultimate responsibility and sole responsibility?
Ultimate responsibility still requires the parents to confer and cooperate and attempt to reach a joint decision and the later requires no such communication. With ultimate responsibility, if a joint decision cannot be reached, one parent has the “final word.” In sole parental responsibility, the parent does not need to make the effort to attempt to reach a joint decision
What happened in De La Fe v De La Fe 2nd DCA 2021 case?
The trial court ordered that parental responsibility would be shared between the parties. However, the order allowed Former Wife to make the ultimate decision on any issue on which the parents do not agree. REVERSED bc this broad grant of ultimate decision-making authority was essentially sole parental responsibility and reversed the decision. Granting one parent “tie-breaking” authority is tantamount to awarding sole parental responsibility. A trial court may not grant one parent sole parental responsibility without making a specific finding that shared parental responsibility would be detrimental to the child
What may serve as a justification for a court to award ultimate decision making authority to a parent?
A continuing pattern of hostility that reasonably would lead one to conclude that the parties would be unable to effectively work together for their child’s best interests.
Can a court award parent ultimate responsibility for religion?
Court should not interfere with either parent’s free exercises of his/her religious beliefs or the exposure of their beliefs to the children unless there is a clear, affirmative showing of harm to the children.
HYPO: Final judgment granted shared parental responsibility and further ordered “Parents are to consult with each other on long range and major decisions, and if no agreement can be reached, the primary residential parent will decide. Any concerns on appeal?
Yes - 4th DCA held this provision undermined the intent of shared parental responsibility by failing to delineate over which specific aspects of the child’s welfare Mother should have ultimate responsibility.
Can court grant ultimate responsibility over all general matters related to child?
No - has to order ultimate over specific area
Can court rule that Mother shall make ultimate decisions regarding “all major decisions affecting the welfare of the child.”?
NO - The court must specifically identify specific areas over which one parent will have final decision-making authority
The magistrate determined that shared parental responsibility was in the best interest of the child except when it comes to education and non-emergency health care. It further granted Father ultimate decision-making authority over “the major decisions concerning the child.” What is the issue here?
Granting ultimate over all major issues conflicts with award of shared.
Court awards shared parental responsibility between the parties, the trial court then awarded Former Wife ultimate decision-making authority over 18 separate areas of parental responsibility. Will finding of ultimate decision sustain appeal?
It did not in the 5th - 5th DCA held that it was an abuse of discretion and reversed because it impermissibly transforms its award of shared parenting into sole parenting to Former Wife, where there was no evidence in the record to support an award of sole parental responsibility. The court noted, however, that “the record might support a more limited award of ultimate responsibility on remand.” “A blanket, nonspecific award of ‘ultimate responsibility’ is contrary to the statutory concept of parental responsibility
What is necessary to uphold award of ultimate responsibility?
Competent substantial evidence as to granting of ultimate of specific area
Will a parent’s unilateral conduct to move kid in and out of schools without consulting other parent support an award of ultimate responsibility to other parent?
Yes - bc mom is preventing shared parental responsibility.
Can evidence of child’s failure to thrive, failure to gain weight coupled with serious acrimony and inability of the parents to agree on a school for the child support ultimate responsibility?
Yes
What happened in Posse v Sierra 5th DCA 2021 case?
The 5th DCA affirmed the trial court awarding ultimate decision-making to Father. The DCA reasoned that it was apparent from the findings in the final judgment that significant conflicts existed between the parties regarding parenting and that ultimate decision-making was in the best interest of the child. A specific finding included that Father was more likely to foster a better relationship with the other parent. Failure to include an express finding of detriment to the child in the final judgment is not error when the determination is consistent with many of the findings made in the final judgment.
Is a party required to plead for ultimate responsibility?
Yes. 4th DCA reversed a portion of the final judgment of dissolution of marriage finding the trial court erred in awarding Former Wife ultimate decision making authority over the child’s extracurricular activities, health care, and education when she only plead for ultimate decision making authority over the child’s extracurricular activities
What findings are necessary for parental responsibility?
61.13(3)(a)-(t) lists factors which the trial court shall consider in determining the best interests of the child for the purposes of creating a parenting plan. Although there is no statutory requirement that a trial court engage in a discussion as to each of the factors, a discussion of the relevant factors can be helpful in determining whether the trial court’s judgment is supported by competent, substantial evidence.
What is the definition of a timesharing schedule?
61.046(23)
“Time-sharing schedule” means a timetable that must be included in the parenting plan that specifies the time, including overnights and holidays, that a minor child will spend with each parent. The time-sharing schedule shall be:
-created and agreed upon by parties
-established by court
What must court find when awarding a ts schedule?
Must go through each statutory factor now
What happened in Glevis case 2nd DCA 2021
Trial court was reversed for failure to include requisite findings in its final judgment why it denied the Former Wife holiday time-sharing.
A DV injunction entered limiting Dad’s limited TS to supervised visits just before modification action. Then modified and said no unsupervised timesharing once certain conditions met. What are the issues on appeal
Lonsdale v Elbanna case 2nd DCA 2021
Because the modification order failed to state any substantial, material, and unanticipated change in circumstances after entry of the injunction order, or that modifying the injunction order would be in the child’s best interests, the modification order was reversed
What happened in the Hiatt v Mathieu 4th DCA 2022 case?
After examining the best interest factors, the trial court ordered a long distance parenting plan with frequent travel that would encourage a continuing relationship with Father who lived in Belgium, expose the minor child to his paternal family members and Belgian culture, and not disrupt the school or routine of the child. The 4th DCA reversed the time-sharing plan in total as it found that the trial court erred in establishing a time-sharing schedule which relied on extensive international travel without considering the parties’ financial ability to afford such travel
Antunes v. Oliveira, (Fla. 3d DCA 2022) – Mother and Father entered into a Marital Settlement Agreement that included sanctions for failing to inform the other parent of international travel with the minor child. The sanctions were (1) that $10,000 be paid to the other parent and (2) that the violating parent would not be permitted to travel internationally with the child until the child reached the age of majority. What are issues with enforcement of these provisions on appeal?
Can enforce the sanction provision since it did not impact the best interest of the child but it could not enforce the no international travel provision since that would not be in best interest of child.
-The best interest of the child takes predominance over any agreement between the parents.
Can court order in FJ that TS is 50/50 when kid starts kindergarten in two years?
No- court may not engage in “prospective-based analysis” of a child’s best interests in the future. “Courts must determine a child’s best interests based on circumstances that exist at the final hearing
Can court order a long-distance time-sharing plan that also provided for a local time-sharing plan that would apply if one of the parties relocated in the future which caused the parties to reside within fifty (50) miles of each other?
Jennings v. Fredes, Fla. 1st DCA 2021
This is prospective based analysis. award of time-sharing based on Father’s potential relocation in the future rather than what is in the best interest of the child was a prospective-based analysis and therefore, reversible error
Can court order multiphase time-sharing schedule that increased Father’s time-sharing after the completion of certain events without judicial intervention?
T.A. v. A.S., (Fla. 2d DCA 2022) - such a time-sharing schedule was prospective-based and therefore, impermissible as it precluded a judicial review of the best interests of the child. In reversing the ruling, the 2nd DCA noted that Father retains the right to petition the court for a modification at any time
What happened in Harrell v. Cook (Fla. 1st DCA 2022)
trial court erred when it ordered a time-sharing schedule which would change in the future based solely on the anticipated future event of the child beginning Kindergarten because the lower court engaged in a prohibited prospective-based analysis.
Can court enforce a timesharing schedule that provides a parent will have reasonable or liberal access?
No - such provisions are not enforceable.
HYPO: A final judgment was entered dissolving the marriage, resolving most of the issues in the case, and establishing a parenting plan for two of the three children. As to the third child the order directed a re-unification Parenting Plan that was to be based on the report and recommendations of Dr. Stephen Bloomfield. The order did not determine a time-sharing schedule for that third child. What are issues on appeal?
Because the issue of time-sharing “is integrally related to other issues concerning the parties’ minor children” a final judgment was not a final, appealable order until a parenting plan was established for all of the parties’ children
What year did the term custody get replaced?
2008 custody was replaced with parenting plan and timesharing and neither primary residential parent
Why is it Florida’s public policy for both parent’s to have frequent and continuing contact with children?
To safeguard meaningful familial relationships.
When may a court restrict or limit a parent’s timesharing?
When it is necessary to protect the welfare of the child - the privilege of timesharing should never be denied either parent so long as he or she conducts themselves, while in the presence of such children, in a manner which will not adversely affect the morals or welfare of the kids.
HYPO: Former Wife claimed Former Husband is not a good role model for the children, that he has an anger management problem, has been violent, fails to return the children on time and fails to get their homework assignments completed. One child refuses visitation because she fears Former Husband. FW requests to limit his TS. What happens?
The 4th DCA held that the trial court did not abuse its discretion in limiting Former Husband’s time-sharing to “Wednesdays from 4:00 p.m. until 7:00 p.m. and every other weekend from Saturday at 9:00 a.m. until Sunday at 11:00 a.m.
HYPO: Court denies H any time with child without findings and W didn’t request that relief. Will this survive appeal?
Court must make findings supported by evidence to establish that denying his time-sharing was necessary to protect the child’s welfare.
Also, it is error for the trial court to award this relief when it was never requested it.
Can a court restrict a parent’s timesharing as a sanction?
No way - court cannot only restrict time when it is necessary to protect welfare of child.
Can a court order supervised timesharing?
While a trial court has the discretion to limit or restrict a parent’s time-sharing when necessary to protect the welfare of a child, an order requiring a parent’s time-sharing to be supervised will be reversed if there are no factual findings as to its necessity or evidence in the record to support the restriction.
E.M. v. E.G., 343 So. 3d 631 (Fla. 2d DCA 2022)
What is 61.45
In any proceeding involving a PP - court can order patent to not leave with kid or order a bond if competent substantial evidence to demonstrate one party is a risk of removing kid or concealing whereabouts
What can a court do when there is a concern that a parent may abscond with a child, particularly if the parent has done so before?
The court may condition time-sharing on the posting of a bond. However, the court must consider the party’s financial resources and the bond must be reasonable.
HYPO: Father was deported to Jamaica after his convictions for sexual battery and aggravated battery with a deadly weapon on Mother. Father had repeatedly threatened to kidnap the children. Jamaica is a nonsignatory to the Hague Convention of the Civil Aspects of International Child Abduction. The FJ ordered Father to have time-sharing with the parties’ two children in Jamaica provided he post a $50,000 bond for each child prior to the time-sharing. What are issues on appeal?
presumption of detriment to the children due to convictions of misdemeanor battery involving domestic violence 61.13(2)(c)2
Court must consider difficulties that Mother would face due to Jamaica’s status as a non-Hague Convention country
HYPO: The Final Judgment granted Father liberal time-sharing, however then severely limited it to periods in which Father was personally able to be with the child, prohibiting Father from leaving the child with friends or relatives due to concern the child would witness acts of violence by Father’s family and friends. What are the issues on appeal?
Trial court must make specific findings relating to the frequency, nature, and severity of the violence as well as details concerning what role family members and friends played in the alleged behaviors prior to imposing such a severe limitation on Father’s time with his child.
Can court restrict TS based on parent’s “immoral” act?
Only if supported by an affirmative showing that the misconduct will have an adverse effect on the child
Can a trial court’s order prohibiting time-sharing at Father’s home due to Father having eight cats and children’s severe allergy and asthma?
Yes - the restriction is necessary to protect the welfare of the children
Is it error to order that Father could not drive automobile with minor child unless another adult with a driver’s license was present in the automobile where the condition was based on mere allegations concerning Father’s drinking habits?
No - need competent substantial evidence to demonstrate the restriction is necessary to protect welfare of children.
In a modification of PP action, are court’s required to give a parent “concrete steps” to restore lost time-sharing and return to the pre-modification status quo?
C.N. v. I.G.C., 316 So. 3d 287 (Fla. 2021) **
NO SUCH REQUIREMENT IS NECESSARY NOW. This was previously a split among the circuits but FL Supreme Court certified the conflict and resolved.
See also Spaulding v. Spaulding, 326 So. 3d 186 (Fla. 1st DCA 2021) & Piccinini v. Waxer, 321 So. 3d 943 (Fla. 5th DCA 2021)
What was the Supreme Court’s rationale for deciding why court’s do not need to impose a concrete plan to restore a parent’s ts in a modification action to the the pre mod status quo?
C.N. v. I.G.C., 316 So. 3d 287 (Fla. 2021) **
(1) chapter 61 does not expressly impose a concrete steps requirement.
(2) court does not err for finally modifying a preexisting parenting plan without giving a parent concrete steps to restore any lost time-sharing.
(3) 61.13(3) sets forth its own specific requirements for modifying parenting plans, including time-sharing schedules.
What happened in the Spaulding case? Spaulding v. Spaulding, 326 So. 3d 186 (Fla. 1st DCA 2021)
Trial court ordered Former Husband’s time-sharing to be supervised without providing a roadmap to achieve unsupervised time-sharing. The 2nd DCA affirmed based on C.N. v. I.G.C., 316 So. 3d 287 (Fla. 2021), finding that a final judgment modifying a preexisting parenting plan is not required to give a parent “concrete steps” to restore lost time-sharing and return to the pre-modification status quo.
What happened in Piccinini v. Waxer, 321 So. 3d 943 (Fla. 5th DCA 2021)
Trial court entered an amended final judgment ordering Father’s time-sharing with his son supervised. The final judgment did not specify the steps necessary to obtain unsupervised time-sharing. Father appealed. The 5th DCA affirmed based on C.N. v. I.G.C., 316 So. 3d 287 (Fla. 2021).
What happened in Lofton v. Arthur, 332 So. 3d 592 (Fla. 1st DCA 2022)?
The trial court found that Father sexually abused his young child and thus, awarded sole parental responsibility and all time-sharing for the child to Mother. Further, no pathway to reunification was provided to Father in the trial court’s ruling. The 1st DCA upheld the trial court’s refusal to provide Father with a path to reunification, stating there is no such requirement that a trial court must give a parent concrete steps to restore lost time-sharing when time-sharing is suspended.
Can a parent refuse timesharing to another parent who failed to pay support?
No - 61.14(4)(a)
What is Fla. Stat. §61.13(4)(b)?
When a parent refuses to honor the other parent’s rights under the time-sharing schedule, the parent whose time-sharing rights were violated shall continue to pay any ordered child support or alimony
If one parent refuses to give a payor parent their TS, can payor parent stop paying support?
NO - 61.14(4)(b)
What can a court do if a parent refuses to honor a timesharing schedule without proper cause?
61.13(4)(c)
1. SHALL, calculate the amount of timesharing improperly denied
- SHALL, award the parent denied time a sufficient amount of extra timesharing to compensate for the time missed
- SHALL, award the parent such makeup timesharing as expeditiously as possible in a manner consistent with the best interests of the child.
- SHALL, award the makeup schedule that is fashioned at the convenience of the non-offending parent and at the expense of the non-compliant parent.
- MAY, order the parent who did not provide timesharing or did not properly exercise timesharing under the schedule to pay reasonable court costs and attorney’s fees incurred by the non-offending parent to enforce the timesharing schedule.
- MAY order the parent who did not provide timesharing or did not properly exercise timesharing under the timesharing schedule to attend a parenting course approved by the judicial circuit.
- MAY order the parent who did not provide timesharing or did not properly exercise timesharing under the timesharing schedule to do community service if the order will not interfere with the welfare of the child.
- MAY order the parent who did not provide timesharing or did not properly exercise timesharing under the schedule to have the financial burden of promoting frequent and continuing contact when the parent and child reside further than 60 miles from the other parent.
- MAY, upon request of the other parent who did not violate the timesharing schedule, modify the parenting plan if modification is in the best interests of the child.
- MAY impose any other reasonable sanction as a result of noncompliance.
What happened in Bruno v. Moreno, 325 So. 3d 299 (Fla. 2d DCA 2021) ?.
Trial court was affirmed for holding Mother in contempt for failure to allow Father time-sharing or communications with the child. Trial court made factual findings in its contempt order of Mother’s actions.
However, the court erred in changing the time-sharing schedule as a contempt sanction when Father never properly sought such remedy in his pleadings and the court further failed to address whether it was in the child’s best interests. Case was remanded for a proper remedy for the contempt finding.
What happened in Nicholas v. Grant, 330 So. 3d 973 (Fla. 2d DCA 2021) ?
Father, who only had supervised time-sharing, filed an emergency motion alleging that Mother denied him time-sharing with the child based on her concerns of exposure to COVID-19 because of her history of asthma in contravene of an administrative order. Although not plead by Father, the trial court entered an order modifying the time-sharing schedule and giving Father unsupervised time-sharing with the child.
The 2nd DCA found that when a parent refuses to honor the time-sharing schedule in the parenting plan without proper cause, the court may, upon request of the non-violating parent, modify the parenting plan if the modification is in the best interest of the child. However, since Father neither requested such relief nor the trial court made a finding that the time-sharing schedule was in the best interest of the child, the 2nd DCA found that it must be reversed.
What is 61.13(4)(d)?
A person who violates th61.13(4) may be punished by contempt of court or other remedies as the court deems appropriate
HYPO: The trial court modified a time-sharing schedule following Mother’s relocation 45 miles away from prior residence due to a work schedule change. Rather than deny Mother the ability to relocate, the court made a slight modification to the time-sharing schedule, allowing Father 6 additional days of time-sharing with the child. Will this sustain appeal?
The 4th DCA upheld the modified time-sharing schedule, noting that while relocation alone may not be a substantial change in circumstance, as a result of the impact on Father’s work schedule, the relocation created an unanticipated and substantial change in circumstance, which was substantial and material. The court also found that the new schedule was in the best interests of the child.
Seith v. Seith, 337 So. 3d 21 (Fla. 4th DCA 2022)
Father filed a petition for relocation and for an upward modification of time-sharing. The trial court denied his relocation request and granted the modification of time-sharing request. However, the trial court ordered in part that time-sharing be downwardly modified for Father in summers, a request not made by either party. Will this sustain appeal?
The Fourth DCA reversed and directed the trial court modify the time-sharing schedule consistent with Father’s request and the children’s best interest.
Hernandez v. Hernandez, 335 So. 3d 141 (Fla. 4th DCA 2022)
At a hearing on unrelated motions, the trial court modified Mother’s time-sharing to be supervised and ordered that she undergo psychological and psychiatric evaluations. Will this sustain appeal?
As neither party had requested that relief nor was Mother offered notice and an opportunity to be heard, the 5th DCA reversed the rulings.
Oddo v. Oddo, 340 So. 3d 541 (Fla. 5th DCA 2022)
Father filed a motion for temporary modification of time-sharing. Both parties presented a proposed time-sharing schedule. The trial court granted the modification request and adopted Mother’s time-sharing schedule. Father argues that the court had no jurisdiction to ratify Mother’s proposed time-sharing schedule - does this sustain appeal? n
No, 3rd DCA held that Father had initiated the proceeding and that the trial court was not bound to adopt the relief requested within Father’s motion
Roberts v. Diaz, 343 So. 3d 156 (Fla. 3d DCA 2022)
What is 61.20?
Social investigation & study concerning all pertinent details relating to the child and each parent.
What is Fla. Fam. L. R. P. 12.364?
Rule applies to the appointment of an investigator to conduct a social investigation and study under § 61.20, Fla. Stat.
Who selects social investigator?
12.364
By agreement of parties or by court
Is a social investigator’s report admissible?
The technical rules of evidence do not exclude the study from consideration.
when must social investigator’s report be done?
12.364
The written study with recommendations shall be furnished to the court and a copy provided to all parties of record by the investigator at least 30 days before any hearing at which the court is to consider the written study and recommendation.
what is parties cannot afford expert for social investigation?
court may request that the Department of Children and Family Services Conduct the Investigation and Study.
Are lawyer’s entitled to a social investigator’s file?
On motion of any party, the court may order the investigator to produce the investigator’s complete file to another qualified investigator for review by such investigator, who may render an opinion and testify
Can a litigant argue hearsay and violation of due process when court relies on social investigative report?
Not if report was provided to parties bc then party can call those witnesses and refute info in social investigation.
Why is it important for a social investigation report be provided in advance to parties?
To avoid violation of the parties’ due process rights.
HYPO: During a divorce, a social investigation was ordered under Fla. Stat. § 61.20. The parties entered into a marital settlement agreement prior to the completion of the report, however they stipulated that the report should be completed regardless of their settlement. A final judgment was entered which incorporated the marital settlement agreement. After completion of the report, the trial court sua sponte entered an order which sealed the report prohibiting its disclosure to the parties. Is this permissible? I
Trial court made no findings that withholding the report from the parents who requested it was necessary to prevent harm to the minor child or that it was otherwise in the child’s best interest. Therefore, parties were entitled to receive a copy of the report
HYPO: divorcing parties stipulated to an order for a social investigation pursuant to Fla. Stat. § 61.20. The report recommended that Father have custody due to damaging statements made by unidentified persons regarding Mother’s morality and residential situation. Mother subpoenaed the investigator and the investigator refused to answer any questions regarding the report. The trial court ordered that the investigator not communicate any information regarding her investigation. Mom appeals. What should happen?
Nothing in Fla. Stat. § 61.20 requires the investigative report to be confidential and a denial of Mother’s request to depose the investigator violates her due process rights
Should trial court take cost of a social investigation into account?
Yes- doing one shouldn’t bleed the parties out. That’s never in child’s best interest.
Is the trial court bound by a social investigation report?
No - trial court can consider the info but it has authority to make its own decision. Relying solely on an expert would be an improper delegation of power.
When can court order appointment of social investigator?
When the issue of time-sharing, parental responsibility, ultimate decision-making, or a parenting plan for a minor child is in controversy, the court, on motion of any party or the court’s own motion, may appoint an investigator under § 61.20
After written report furnished by social investigator, may a party seek an additional investigation?
Any party may file a motion for an additional expert examination, evaluation, interview, testing, or investigation. The court upon hearing may order the additional examination, evaluation, testing, or interview of the minor child based on the court finding that the investigation is insufficient and that further examinations, testing, interviews, or evaluations of the minor child would be in the best interests of the minor child.
What is the test to determine if exception for hearsay of statement of child victim under 90.803(23) may be admitted?
(1) the source of the information through which the statement was reported must indicate trustworthiness, and
(2) the time, content, and circumstances of the statement must reflect that the statement provides sufficient safeguards of reliability.
The child victim’s hearsay statements are admissible under this section only if the child testifies or is judicially found to be unavailable as a witness. A child is unavailable “if the court finds, based on expert testimony that a substantial likelihood exists that the child will suffer severe emotional or mental harm if the child testifies or finds that the child falls within one of the definitions for unavailability set forth in section 90.804(1).”
what rule prohibits testimony and attendance of minor child?
12.407
How are parent’s due process rights protected in event court decides to allow child tesitmony?
A parent’s due process rights are protected by the mere presence of a court reporter in an in-camera interview without counsel or the parties’ presence
If court allows child testimony and neither parent requests a court reporter or objects to no court reporter being present, can they raise issue on appeal violation of due process?
No
If party requests court reporter for child testimony, must court allow it?
YES, otherwise it’s a violation of due process rights.
What statutes govern guardian ad litems?
61.401 & 61.403
When can a court appoint a GAL?
If court finds it is in the best interest of the child it can appoint a GAL to act as next friend of the child, investigator or evaluator, NOT AS AN ATTORNEY OR ADVOCATE
Can court appt GAL to act as child’s legal counsel?
NO
Can GAL and legal counsel for child be the same person?
No
Is a GAL a party to an action?
Yes, from time of appointment until discharge.
What powers and authority do GALs have?
GAL must act in child’s best interest and has powers to advance best interest to:
-investigate allegations of pleadings affecting child
-interview child or witnesses
-assist court in obtaining impartial expert exams
-address court and make written or oral recs - GAL MUST FILE WRITTEN REPORT WHICH MAY INCLUDE REC AND STATEMENT OF WISHES OF CHILD which must be served on all parties 20 days prior to any hearing well it will be presented UNLESS court waives time limit
-entitled to be present and participate in all depos, hearings and other proceedings
-shall submit recs regarding any stip or agreement whether temp or perm which affect interest of children within 10 days after date agreement served on GAL
What may a GAL do through counsel?
-Petition court to order records concerning kids - hospital, medical, dr, dentist, psych, etc. but only after notice given to all parties and a hearing held
-request court to order expert exam of child, parents or other interested parties
-may file pleadings motions petition GAL deems necessary in furtherance of GALs function
What statute governs communication between parent and child?
61.13003
what is 61.13003?
Court-ordered electronic communication between a parent and a child
What must court consider when ordering electronic communication between parent and child?
61.13003(1)(a)
1. Whether electronic communication is in a child’s best interests;
2. Whether communication equipment and technology to provide electronic communication is reasonably available, accessible, and affordable;
3. Each parent’s history of substance abuse or domestic violence; and
4. Any other factor that the court considers material.
What is the definition of abuse of discretion?
The Florida Supreme Court stated, the test for review of abuse of discretion is when the court’s action is “arbitrary, fanciful, or unreasonable” which is another way of saying that discretion is abused only where no reasonable man could take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.”
What is judicial discretion?
Judicial discretion is the power the courts exercise when determining questions “to which no strict rule of law is applicable” but which, due to their nature and the circumstances the case presents, the court’s personal judgment controls.
What type of nonfinal orders can be appealed?
9.130
1. concern venue
2. grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions;
3. determine the jurisdiction of the person;
4. determine the right to immediate possession of property, including but not limited to orders that grant, modify, dissolve, or refuse to grant, modify, or dissolve writs of replevin,
garnishment, or attachment
5. the right to immediate monetary
relief;
6. the rights or obligations of a party
regarding child custody or time-sharing under a parenting plan;
7. that a marital agreement is invalid
in its entirety
8. the issue of forum non conveniens
9. that, as a matter of law, a settlement
agreement is unenforceable, is set aside, or never existed
10. grant or deny the appointment of a receiver, or
terminate or refuse to terminate a receivership;
11. grant or deny a motion to disqualify counsel;
What is the standard of review for final order of contempt?
Judgments of contempt are “clothed with a presumption of correctness” that the appellate court will not overturn without a clear showing that the trial court either abused its discretion or “departed so substantially from the essential requirements of law as to have committed fundamental error.”
What is the standard of review on a motion to continue?
Although trial courts are endowed with rather broad discretion in deciding whether to grant or deny a motion for continuance, the exercise of that discretion is not absolute. Must consider:
1) whether the movant suffers injustice from the denial of the motion;
2) whether the underlying cause for the motion was unforeseen by the movant and whether the motion is based on dilatory tactics; and
3) whether prejudice and injustice will befall the opposing party if the motion is granted.
Standard review for modification of parenting plan?
Standard for review of an order on a motion to modify custody is abuse of discretion
Can court temporarily modify timesharing?
Not unless there is an emergency situation.
What is the standard of review for final judgments including pp?
Abuse of discretion
Can a social investigator do an interim recommendation?
No - only a GAL can do that.
Can court enter a PP without divorce?
Yes - 61.10
Where is venue property for modification of Parental Resp/TS?
- the circuit court in the county which either parent reside and the child reside; or
- the circuit court in which the original order approving or creating the parenting plan was entered.
What evidence creates a rebuttable presumption of detriment to a child
- parent convicted of misdemeanor of 1st degree or higher involving domestic violence
- Parent meets criteria for termination of parental rights
- Parent convicted of, had adjudication withheld for sex offense and at time of offense parent was 18 or older and victim was under 18 or parent believed kid was under 18
What happens if presumption of detriment is not rebutted after court advised the convicted parent that presumption exists?
Court cannot award shared parental or TS with the convicted parent but convicted parent still has CS obligation
If court determines shared parental responsibility is detrimental, what should it do
it MAY order sole parental and make a TS schedule that will best protect child or abused spouse from further harm
What type of presumption is created if a parent has been convicted of, had adjudication withheld for a sex offense and at time parent was 18 and victim was under 18 or parent thought they were
It creates a rebuttable presumption AGAINST granting TS with a minor child
How can a parent rebut presumption AGAINST ts when the have been convicted of, had adjudication withheld for a sex offense and at time parent was 18 and victim was under 18 or parent thought they were
Court must make a specific finding that the parent poses no significant harm to the child and TS is in BIC. If presumption rebutted, court will consider 61.13 factor for TS
Primary consideration for creating or modifying ts and pp
BEST INTEREST OF CHILD
If a parent is in a recovery residence, what can the court not order with respect to TS
Cannot order a child to visit parent in recovery between hours 9pm and 7 am UNLESS SPECIFIC FINDING IT IS IN CHILD’S BIC
If a parent is in recovery residence and court makes specific findings it is in child’s best interest to visit parent between 9pm and 7 am what factors must it consider
- If parent resides in specialized resident for pregnant women or parents whos children live with them
- the number of adults living in recovery center
- parent’s level of recovery
when can the court not order visitation at recovery center
If any resident is currently registered a sex predator or sex offender
What is the definition of caretaking authority under the Uniform Deployed Parents Custody & Visitation Act?
“Caretaking authority” means the right to live with and care for a child on a day-to-day basis. The term includes physical custody, parenting time, right to access, time-sharing, and visitation.
What is the definition of a close and substantial relationship under the Uniformed Deployed Parents Custody & Visitation Act
“Close and substantial relationship” means a positive relationship of substantial duration and depth in which a significant emotional bond exists between a child and a nonparent.
What is the definition of decision making authority under the Uniformed Deployed Parents Custody & Visitation Act
Decisionmaking authority” means the power to make important decisions regarding a child, including decisions regarding the child’s education, religious training, health care, extracurricular activities, and travel
Are decisionmaking authority and caretaking authority synonymous under the Deployed Parents Custody & Visitation Act
The term does not include the power to make decisions that necessarily accompany a grant of caretaking authority.
What is the definition of deployment under the Deployed Parents Custody & Visitation Act
“Deployment” means the movement or mobilization of a servicemember for less than 18 months pursuant to uniformed service orders that:
(a) Are designated as unaccompanied;
(b) Do not authorize dependent travel; or
(c) Otherwise do not permit the movement of family members to the location to which the servicemember is deployed.
What is the definition of notice of deployment
“Notice of deployment” means official notification to a servicemember, through orders or other written or electronic communication, that the servicemember is subject to deployment on or about a specified date.
What is the definition of a servicemember
a member of a uniformed service.
What is the definition of uniformed service
(a) Active and reserve components of the Army, Navy, Air Force, Marine Corps, Space Force, or Coast Guard of the United States.
(b) The United States Merchant Marine.
(c) The commissioned corps of the United States Public Health Service.
(d) The commissioned corps of the National Oceanic and Atmospheric Administration.
(e) The National Guard of a state or territory of the United States, Puerto Rico, or the District of Columbia.
When was the Uniformed Deployment Parents Custody & Visitation Act created
July 1, 2018
What is the criticism about the Uniformed Deployment Parents Custody & Visitation Act ?
That it violates right to private under FL Constitution and Due Process under 14th Amendment of US Constitution bc it allows visitation or custody with a non-parent upon clear and convincing evidence that it is in BIC and there is no requirement to prove HARM to child.
FL Supreme Court has consistently held that the sate has to show a compelling interest to uphold such a statute only by showing kid will suffer actual HARM by lack of visitation by grandparents
Does the Uniformed Deployment Parents Custody & Visitation Act govern relocations
NO - bc this is a permanent change in station, not temporary. Must apply 61.13001
Does court need jur over child to issue order regarding custodial responsibility under Uniformed Deployment Parents Custody & Visitation Act
Yes, required to have UCCJEA
For purposes of UCCJEA, the residence of the deploying parent does not change by reason of deployment IF
- A court has issued a temporary order regarding custodial responsibility.
- A court has issued a permanent order regarding custodial responsibility before notice of deployment and the parents modify that order temporarily by agreement.
- A court in another state has issued a temporary order regarding custodial responsibility as a result of impending or current deployment.
What is the definition of a “record” within Uniformed Deployment Parents Custody & Visitation Act
Information that is created in a tangible medium or stored in an electronic or other medium and is retrievable in perceivable form
When must a deploying parent give notice of deployment to the other parent
A pending deployment not later than 7 days after receiving notice of deployment unless he or she is reasonably prevented from doing so by the circumstances of service, in which case the deploying parent shall provide notice as soon as reasonably possible.
When is a deployment parent not required to give notice of deployment to other parent
When they live in the same house.
What information shall deploying parent give other parent with notice of deployment
A proposed plan fulfilling each parent’s share of custodial responsibility during deployment provided as soon as reasonably possible after notice of deployment is given
If an individual is granted custodial responsibility during deployment, what notice requirements are imposed
Any change in mailing address or residence until the grant is terminated and must give notice to the Court that issued custody or child support
What are the requirements if parents of a child reach a temporary agreement granting custodial responsibility during deployment
- Must be in writing an signed by both parents AND the agreed upon nonparent who is granted temp custodial responsibility
- Identify the destination, duration and conditions of deployment that is the basis for the agreement
- Specify the allocation of caretaking authority among the deploying parent and the other parent AND agreed upon nonparent
- Specify any decision making authority that accompanies a grant of caretaking authority
- Specify any granted of limited contact to a non-parent
- Provide a process to resolve disputes that may arise if custodial responsibility is shared by the other parent and nonparent
- Specify frequency, duration and means, including electronic means, by which deploying parent will have contact with kid and the role to be played by other parent or nonparent facilitating the contact and allocation of costs for contact
- Acknowledge that the temp custody agreement does NOT modify existing CS and that changing those terms requires modification
- Set forth when agreement terminates after deploying parent returns
When does a temporary custodial agreement terminate
It is TEMPORARY and terminates after deploying parent returns unless the agreement has been terminated by a “record” or written agreement signed by both parents OR by court order
What does an agreed upon nonparent have standing to do with respect to the temporary agreement
Only standing to ENFORCE until it is terminated
How is a temporary custodial agreement modified
By agreement of parties with or without consent of nonparent
What is the requirement of a modification of a temporary custody agreement before deployment?
Must be in writing and signed by both parents and by the nonparent
What is the requirement of a modification of a temp custody agreement during deployment
Must be agreed to in a “record” by both parents and by nonparent
When can a deployment parent grant power of attorney of all or part of their custodial responsibilities to a nonparent during period of deployment
- no other parent possesses custodial responsibility OR
- court order prohibits contact between child and other parent
What do the parties do with their custodial agreement
Must be filed with court within a reasonable time after the court has entered order relating to custodial responsibility or cs
If parties can’t reach temp custodial agreement then what
Either party may file a MOTION REGARDING CUSTODIAL RESPONSIBILITY Court can issue a temporary order granting custodial responsibility unless prohibited by the servicemembers civil relief act
When can court enter an order on temp custodial responsibility
After deploying parent received notice of deployment and until deployment terminates IF parents cannot agree
Can court issue permanent order granting custodial responsibility
Not without consent of deploying parent
When must a motion for custodial responsibility be filed?
BEFORE deploying parent deploys and the court SHALL conduct and EXPEDITED HEARING
For a deploying parent testifying by electronic means, who swears them in
Must be sworn in by officer authorized to administer oaths under federal law
When the court will not enforce a prior court order or written agreement on custodial
when it finds that it’s not in the child’s best interest
Can a court grant temporary caretaking authority to a nonparent
If it is in BIC court may grant temp caretaking authority to adult family member of child or someone who child has a close and substantial relationship but if not a family member BIC BY CCE standard
THIS WAS A MULTIPLE CHOICE OR SHORT ANSWER FOR BOARD CERT EXAM***
Absent agreement by parties, how long can court grant temporary caretaking authority
- Cannot exceed amount of time granted to deployed parent in the perm order (including travel time)
- If no perm order, amount of time deployed parent habitually cared for child before notice of delopment
When can court grant temporary decisionmaking authority
If deploying parent unable to do so but must find it is in BIC to grant part of that authority to nonparent who is an adult family member OR adult with a close and substantial relationship but if nonfamily member must prove BIC BY CCE
Can a family member or person with close and substantial relationship with child who is not granted temporary caretaking able to seek limited contact
Yes, unless it is NOT IN BIC
Does a court have to allow limited contact
Unless court finds limited contact would NOT be in BIC, IT SHALL allow it for a family member or nonfamily member with whom kid has a close and substantial relationship but must prove BIC BY CCE
If parents enter written agreement to terminate temporary custody order, can nonparent move to enforce it
NO - the agreed upon nonparent can only file enforcement action when it is in effect
What must an order granting custodial responsibility include
(1) Designate the order as temporary and provide for termination after the deploying parent returns from deployment.
(2) To the extent permissible, identify the destination, duration, and conditions of the deployment.
(3) Specify the allocation of caretaking authority, decisionmaking authority, or limited contact among the deploying parent, the other parent, and any nonparent.
(4) Provide a process to resolve any dispute that may arise if the order divides caretaking or decisionmaking authority between individuals, or grants caretaking authority to one individual and limited contact to another individual.
(5) Provide for liberal communication between the deploying parent and the child during deployment, including through electronic means, unless it is not in the best interest of the child, and allocate any costs of communication.
(6) Provide for liberal contact between the deploying parent and the child during the time the deploying parent is on leave or otherwise available, unless it is not in the best interest of the child.
(7) Provide for reasonable contact between the deploying parent and the child after the parent’s return from deployment until the temporary order is terminated, even if the time of contact exceeds the time the deploying parent spent with the child before entry of the temporary order.
If court has entered an order granting caretaking authority, can it enter order on temp cs
IT may if it has jur under UIFSA
If court enters a temp order for cs, what may it do
- temp order for cs per 61.30 from deploy parent to other parent
- require deploy parent to enroll child as military dependent with DDERS, TriCare or other similar benefits available to military dependent
- Suspend abate or reduce CS until deployment over
What is standard to modify a temporary custody order
BEST INTEREST OF CHILD
If no agreement to terminate an order of temporary custody, when does it terminate
Automatically 30 days after deploying parent gives notice of return to other parent
When can a grandparent seek visitation with a minor child
- PARENTS are deceased, missing for at least 90 days) or in a persistent vegetative state OR
- Whose one parent is deceased, missing (at least 90 days), or in a persistent vegetative state AND whose other parent has been convicted of a felony or an offense of violence evincing behavior that poses a substantial threat of harm to the minor child’s health or welfare,
If a grandparent files petition for visitation, what must court do first
Hold a preliminary hearing to determine whether petitioner has made a prima facie showing of parental unfitness or significant harm to the child.
What happens if a grandparent fails to meet their burden in a preliminary hearing
If grandparent fails to a make a prima facie showing of parental unfitness or significant harm to the child, court SHALL dismiss and may award reasonable attorney fees and costs to be paid by the grandparent to parent
What happens if court determines that there is prima facie evidence that a parent is unfit or that there is significant harm to the child
the court may appoint GAL and shall refer the matter to family mediation
When can court award visitation to grandparents
The court may award reasonable visitation to the grandparent with respect to the minor child if the court finds by clear and convincing evidence that a parent is unfit or that there is significant harm to the child, that visitation is in the best interest of the minor child, and that the visitation will not materially harm the parent-child relationship.
What standard should court consider in these proceedings for grandparent visitation
In assessing the best interest of the child, the court shall consider the TOTALITY OF CIRCUMSTANCES AFFECTING MENTAL AND EMOTIONAL WELL-BEING OF MINOR CHILD including:
(a) The love, affection, and other emotional ties existing between the minor child and the grandparent, including those resulting from the relationship that had been previously allowed by the child’s parent.
(b) The length and quality of the previous relationship between the minor child and the grandparent, including the extent to which the grandparent was involved in providing regular care and support for the child.
(c) Whether the grandparent established ongoing personal contact with the minor child before the death of the parent, before the onset of the parent’s persistent vegetative state, or before the parent was missing.
(d) The reasons cited by the respondent parent in ending contact or visitation between the minor child and the grandparent.
(e) Whether there has been significant and demonstrable mental or emotional harm to the minor child as a result of the disruption in the family unit, whether the child derived support and stability from the grandparent, and whether the continuation of such support and stability is likely to prevent further harm.
(f) The existence or threat to the minor child of mental injury as defined in s. 39.01.
(g) The present mental, physical, and emotional health of the minor child.
(h) The present mental, physical, and emotional health of the grandparent.
(i) The recommendations of the minor child’s guardian ad litem, if one is appointed.
(j) The result of any psychological evaluation of the minor child.
(k) The preference of the minor child if the child is determined to be of sufficient maturity to express a preference.
(l) A written testamentary statement by the deceased parent regarding visitation with the grandparent. The absence of a testamentary statement is not deemed to provide evidence that the deceased or missing parent or parent in a persistent vegetative state would have objected to the requested visitation.
(m) Other factors that the court considers necessary to making its determination.
What factors shall court consider in assessing material harm to parent-child relationship
(a) Whether there have been previous disputes between the grandparent and the parent over childrearing or other matters related to the care and upbringing of the minor child.
(b) Whether visitation would materially interfere with or compromise parental authority.
(c) Whether visitation can be arranged in a manner that does not materially detract from the parent-child relationship, including the quantity of time available for enjoyment of the parent-child relationship and any other consideration related to disruption of the schedule and routine of the parent and the minor child.
(d) Whether visitation is being sought for the primary purpose of continuing or establishing a relationship with the minor child with the intent that the child benefit from the relationship.
(e) Whether the requested visitation would expose the minor child to conduct, moral standards, experiences, or other factors that are inconsistent with influences provided by the parent.
(f) The nature of the relationship between the child’s parent and the grandparent.
(g) The reasons cited by the parent in ending contact or visitation between the minor child and the grandparent which was previously allowed by the parent.
(h) The psychological toll of visitation disputes on the minor child.
(i) Other factors that the court considers necessary in making its determination.
How can an order for grandparent visitation be modified
Order for grandparent visitation may be modified upon a showing by the person petitioning for modification that a substantial change in circumstances has occurred and that modification of visitation is in the best interest of the minor child
How frequently can a grandparent petition for visitation
An original action requesting visitation under this section may be filed by a grandparent only once during any 2-year period, except on good cause shown that the minor child is suffering, or may suffer, significant and demonstrable mental or emotional harm caused by a parental decision to deny visitation between a minor child and the grandparent, which was not known to the grandparent at the time of filing an earlier action
What is the proper venue for grandparent visitation action
Venue shall be in the county where the minor child primarily resides, unless venue is otherwise governed by chapter 39, chapter 61, or chapter 63.
Can parents agree to arbitrate kid issues or child support issues
NO - IT IS UNENFORCEABLE
When can the court order a social investigation
In any action when a PP is at issue and parents are unable to agree
What is the purposes of a social investigation
To determine pertinent details about kid and parent
Who can perform a social investigation
- Qualified staff of court
- Child placing agency (409.175)
- Licensed psychologist (490)
- Clinical social worker, marriage and family therapist or mental health counselor (491)
- Unless indigent status then DCF
What must a social investigator furnish to court
Written study containing recommendations including written statement of facts found in the social investigation on which the recommendations are based
How are social investigators paid
Unless indigent states, paid by the parties and it is treated as a court cost
How can a social investigator be appointed
By motion of either party or the court on its own motion
Who picks a social investigator
Parties by agreement or by court appointment
In order for a social investigator to testify to their written study, what has to happen
They must be qualified as an expert
How is a witness qualified as an expert
If scientific, technical or other specialized knowledge will assist the trier of fact in understanding the evidence or determining a fact in issue
When can a qualified expert witness as an expert by knowledge, skill, experience, training or education testify in the form of opinion?
- testimony is based upon sufficient facts or data
- testimony is the produce of reliable principles and methods and
- witness has applied the principles and methods reliably to facts of case
What must an order for social investigation include
- If it is an initial PP or modification
- That investigator is required to consider BIC based on all factors affecting welfare and interest of kid as set forth in 61.13
What must an order appointing a social investigator include
- Name, addres and phone of each parent
- name address and phone of investigator being appointed
- specific issues to be addressed
- initial allocation of costs
- direct parties to contact investigator
what should court do with an order of appointment of social investigator
Immediately provided it to the investigator unless otherwise directed by court
What must investigator prepare
Written study with recommendations as to PP and written statement of facts found in social investigation on which recommendations are based
When must social investigators report be furnished
At least 30 days before any hearing where report will be considered unless otherwise ordered by court
After written report filed by social investigator, can parties seek additional investigation
Yes - court will hold a hearing and determiner if the current investigation is insufficient and if another one would be in BIC
Can a party seek production of investigators file?
Court may order an investigator to produce their complete file to ANOTHER qualified investigator to review so that person can render an opinion and testify
Can the court order an evaluation of minor child
Yes - 12.363 if either party requests it or on court’s own motion
If expert appointed to evaluate a minor child per 12.363, what must they do
Provide written report to each party and GAL if applicable
Send notice to court when report complete & that copy when to all parties - DO NOT SEND REPORT TO COURT UNLESS PARTIES HAVE AGREED IN WRITING TO ALLOW COURT TO CONSIDER IT
When must report be provided to parties by expert under 12.363
30 days before trial or 75 days from date of appointment UNLESS TIME EXTENDED BY COURT
What must an order appointing expert under 12.363 include
- issues to be addressed by expert
- may require that all interviews of the child be recorded and the tapes be maintained as part of the expert’s file
- shall include an initial allocation of responsibility for payment.
4.direct the parties to contact the expert appointed by the court to
establish an appointment schedule to facilitate timely completion of the evaluation
Can a party seek additional evaluation under 12.363 once report made available
Only on a showing of good cause and only upon a finding that further examinations, testing, interviews, or evaluations would be in the best interests of the minor child
Can party request evaluator’s file
The court may order the expert to
produce the expert’s complete file to another expert at the initial cost of the
requesting party, for review by such expert, who may testify
When can other expert who has treated,
tested, interviewed, examined, or evaluated a child may testify?
Only if the court determines that good cause exists to permit the testimony. The fact that no notice of such treatment, testing, interview, examination, or evaluation of a child was given to both parents shall be considered by the court as a basis for preventing such testimony
Can an expert communicate with the court
No expert may communicate with the court without prior notice to the parties, who shall be afforded the opportunity to be present and heard during any such communication between the expert and the court. A request for communication with the court may be informally conveyed by letter or telephone. Further communication with the court, which may be conducted informally, shall be done only with notice to the parties.
How is an expert to evaluate minor child defined?
It isn’t
When can court appoint a GAL
In creation or modification of PP IF COURT FINDS IT IS IN THE BEST INTEREST OF CHILD
When MUST a court appoint a GAL
If verified allegation of child abuse, abandonment, or neglect per 39.01, and the court determined the allegations are well founded IT SHALL APPOINT GAL
What is GAL supposed to do
Act as next friend of child, investigator or evaluator NOT ATTORNEY OR ADVOCATE but must act in BIC
Can court appoint legal counsel for child
Yes - court has discretion to appoint attorney or advocate but cannot be same as GAL
What powers are conferred on GAL
Powers, privileges and responsibilities to the extent necessary to advance the BIC including but not limited to
1. investigate allegations in pleadings affecting child and after proper notice may interview child, witnesses or any other person with info concerning welfare of child
- GAL, through counsel, may petition court or order directing specific person, agency or organization (hospital, dr, dentist, psych) that allows GAL to inspect and copy records that related to MC or Child’s parents or other custodial persons or household members with whom child resides
- GAL, through counsel, may request court to order expert exam of kid, parents or other interested parties, by dr, dentist, psychologist or psychiatrist or other mental professional
- GAL can assist court in obtaining impartial expert exams
- GAL may address court and make written or oral recs.
- GAL through counsel may file pleadings, motions or petitions for relief in furtherance of GAL’s function & can participate in depos, hearings etc.
- Nonattorney GAL are not permitted to practice law
- GAL shall submit their rec as to any stip (temp or perm) with affects kids within 10 days after stip served on GAL
When is GAL required to file written report
GAL shall file written report (which may include recommendations and statement of wishes of child. Shall be FILED and SERVED on all parties 20 days prior to hearing where it will be used UNLESS COURT WAIVES TIME LIMIT.
Who can be GAL
- Certified by GAL program
- Certified by nonprofit legal aid org
- Attorney in good standing FL BAR
What immunity is afforded to GAL
Any person acting as GAL shall be presumed prima facie to be acting in good faith and in doing so shall be immune from any liability, civil or criminal that might be incurred or imposed
What are evidentiary considerations of GAL report
Subject to technical rules of evidence and child hearsay is inadmissible unless it falls within statutory exception
When can court consider statement of a child victim?
If victim child 16 or less describes act of child abuse, neglect or sex abuse against child shall be admissible IF
1. Court conducts hearing that time, content and circumstances of statement provide sufficient safeguards of reliability AND
2 child testifies OR is unavailable as a witnesses PROVIDED THER EIS OTHER CORROBORATIVE EVIDENCE of abuse or offense
When will court decline to consider statement of child victim
IF THE SOURCE OF INFO OR METHOD OR CIRUMSTANCES BY WHICH STATEMENT WAS REPORTED LACKS TRUSTOWRTHINESS
What must court consider in determining if the time, content and circumstances of a child victim statement provide sufficient safeguards?
Court may consider the mental and physical age and maturity of child, the nature and duration of abuse or offense and relationship of child to the offender and reliability of the child victim and any other factor deemed appropriate
Who is a parenting coordinator
An impartial third party appointed by the court or agreed to by the parties whose role is to assist the parties in successfully creating or implementing a parenting plan.
What is parenting coordination
A nonadversarial dispute resolution process that is court ordered or agreed upon by the parties.
What is the purpose of parenting coordination
To provide a child-focused alternative dispute resolution process whereby a parenting coordinator assists the parents in creating or implementing a parenting plan by facilitating the resolution of disputes between the parents by providing education, making recommendations, and, with the prior approval of the parents and the court, making limited decisions within the scope of the court’s order of referral
When can parenting coordination be ordered
In any action in which a judgment or order has been sought or entered adopting, establishing, or modifying a parenting plan, except for a domestic violence proceeding , and upon agreement of the parties, the court’s own motion, or the motion of a party, the court may appoint a parenting coordinator and refer the parties to parenting coordination to assist in the resolution of disputes concerning their parenting plan.
Can court order parenting coordination if there is DV
If there has been a history of domestic violence, the court may not refer the parties to parenting coordination unless both parents consent.
Who can be a PC
Must meet one of the following professional requirements
1. Be licensed as a mental health professional un
2. Be licensed as a physician with certification by the American Board of Psychiatry and Neurology.
3. Be certified by the Florida Supreme Court as a family law mediator, with at least a master’s degree in a mental health field.
4. Be a member in good standing of The Florida Bar
AND Complete all of the following:
1.. 3 years of post licensure or postcertification practice.
2. Family mediation training program certified by the Florida Supreme Court.
3. A minimum of 24 hours of parenting coordination training
4. Minimum 4 hours DV training and child abuse as it relates to PC
Can parties agree to a PC who is not qualified?
Yes but court cannot appoint unqualified persons absent agreement of parties
What disqualifies a PC
1. Has been convicted or had adjudication withheld on a charge of child abuse, child neglect, domestic violence, parental kidnapping, or interference with custody;
2. Has been found by a court in a child protection hearing to have abused, neglected, or abandoned a child;
3. Has consented to an adjudication or a withholding of adjudication on a petition for dependency;
4. Is or has been a respondent in a final order or injunction of protection against domestic violence; or
5. Has been disqualified by the Parenting Coordinator Review Board.
Can court order PC if parties are indigent
The court may not order the party to parenting coordination unless public funds are available to pay the indigent party’s allocated portion of the fees and costs or the nonindigent party consents to paying all of the fees and costs.
Are PC sessions confidential
All communications made by, between, or among the parties, participants, and the parenting coordinator during parenting coordination sessions are confidential. The parenting coordinator, participants, and each party designated in the order appointing the coordinator may not testify or offer evidence about communications made by, between, or among the parties, participants, and the parenting coordinator during parenting coordination sessions
What is the exception to PC confidentiality
(a) Necessary to identify, authenticate, confirm, or deny a written agreement entered into by the parties during parenting coordination;
(b) The testimony or evidence is necessary to identify an issue for resolution by the court without otherwise disclosing communications made by any party, participant, or the parenting coordinator;
(c) The testimony or evidence is limited to the subject of a party’s compliance with the order of referral to parenting coordination, orders for psychological evaluation, counseling ordered by the court or recommended by a health care provider, or for substance abuse testing or treatment;
(d) The parenting coordinator reports that the case is no longer appropriate for parenting coordination;
(e) The parenting coordinator is reporting that he or she is unable or unwilling to continue to serve and that a successor parenting coordinator should be appointed;
(f) The testimony or evidence is necessary pursuant to paragraph (6)(b) or subsection (9)
(g) The parenting coordinator is not qualified to address or resolve certain issues in the case and a more qualified coordinator should be appointed;
(h) The parties or participants agree that the testimony or evidence may be permitted;
(i) The testimony or evidence is necessary to protect any person from future acts that would constitute domestic violence; child abuse, neglect, or abandonment; or abuse, neglect, or exploitation of an elderly or disabled adult;
(j) The testimony or evidence is offered to report, prove, or disprove a violation of professional malpractice occurring during the parenting coordination process, solely for the purpose of the professional malpractice proceeding; or
(k) The testimony or evidence is offered to report, prove, or disprove professional misconduct occurring during the parental coordination proceeding, solely for the internal use of the body conducting the investigation of the conduct.
When MUST PC report emergency to court
A parenting coordinator must immediately inform the court by affidavit or verified report without notice to the parties of an emergency situation if:
1. There is a reasonable cause to suspect that a child will suffer or is suffering abuse, neglect, or abandonment;
2. There is a reasonable cause to suspect a vulnerable adult has been or is being abused, neglected, or exploited;
3. A party, or someone acting on a party’s behalf, is expected to wrongfully remove or is wrongfully removing the child from the jurisdiction of the court without prior court approval or compliance with the requirements of s. 61.13001. If the parenting coordinator suspects that the parent has relocated within the state to avoid domestic violence, the coordinator may not disclose the location of the parent and child unless required by court order.
Under 61.13 in determining if shared parental responsibility would be detrimental what must could consider -
- Evidence of DV
- Whether either parent has reasonable belief they or their MC are or have been in imminent danger of becoming victims of act of DV or sexual violence
- Abuse abandonment or neglect
- Any other relevant factor
