Children’s Issues

Question 1

What is the definition of a “parenting plan”?

Answer 1

61.046(14) A 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.

Question 2

How is a parenting plan established?

Answer 2

61.046(14)(a)
-agreed to by parties and approved by court or
-established by court

Question 3

What must all parenting plans include under Chapter 61?

Answer 3

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)

Question 4

For purposes of the UCCJEA, a judgment or order incorporating a PP is considered what kind of determination?

Answer 4

61.046(14)(c) - a child custody determination

Question 5

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?

Answer 5

61.046(14)(d) - rights of custody and rights of access

Question 6

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Answer 6

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Question 7

What are the minimum requirement of a PP approved by the Court?

Answer 7

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;

3. 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.

Question 8

What happened in the case of Hernandez v. Mendoza (4th DCA 2022 case)?

Answer 8

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.

Question 9

What did the case of Webking v Webking (1st DCA 2022 case) stand for?

Answer 9

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.

Question 10

Which statute gives power to courts and jurisdiction to enter PP?

Answer 10

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

Question 11

How does the court review determinations of school boundaries?

Answer 11

Abuse of discretion.

Question 12

Can the FL Court order minor children to be returned to FL when one parent relocates without complying with F.S. 661.13001.

Answer 12

Yes. Blatt v. Blatt

Question 13

What is the standard of review when reviewing a relocation case?

Answer 13

Abuse of discretion. A relocation order will be affirmed if it is based on competent substantial evidence in the best interests of minor child.

Question 14

When can a claim for Intentional Interference with a Custodial Relationship be asserted against a third party?

Answer 14

(1) the complaining parent has a right to establish or maintain a parental or custodial relationship with his/her minor child;
(2) a party outside of the relationship between the complaining parent and his/her child intentionally interfered with the complaining parent’s parental or custodial relationship with his/her child by removing or detaining the child from returning to the complaining parent, without that parent’s consent, or by otherwise preventing the complaining parent from exercising his/her parental or custodial rights;
(3) the outside party’s intentional interference caused harm to the complaining parent’s parental or custodial relationship with his/her child; and
(4) damages resulted from such interference.
Gleg v. Ven Den Herk & Peacy 4th DCA 2024.

Question 15

Can a claim for Intentional Interference with a Custodial Relationship be brought against a co-parent?

Answer 15

No. Gleg v. Ven Den Herk & Peacy 4th DCA 2024.

Question 16

Can the Court award ultimate decision making if it was not plead?

Answer 16

No. An award of ultimate decision making must be plead.

Question 17

When awarding ultimate decision making, what must the Court do?

Answer 17

An award of ultimate decision making must be supported by competent substantial evidence and must specify the specific matters of which the parent bein awarded ultimate decision making would have ultimate decision making authority over. The court can’t issue a blanket award for ultimate decision making.

Question 18

Can the court delegate parenting matters to a third party?

Answer 18

No. When making a determination of child custody or time sharing in a proceeding for divorce, a trial court may condition increased timesharing on the successful completion of parenting courses and therapy; however, the trial court is to be the sole decider of whether a parent has sufficiently complied with court-ordered conditions to be eligible for an increase in timesharing and may not delegate this authority to anyone, including a court-appointed doctor.

Question 19

What does 61.13 require a court to do when creating or modifying a timesharing schedule?

Answer 19

As of July 1, 2023, the Legislature has amended section 61.13, Florida Statutes to instruct: “Except when a time-sharing schedule is agreed to by the parties and approved by the court, the court must evaluate all of the factors set forth in subsection (3) and make specific written findings of fact when creating or modifying a time-sharing schedule.” § 61.13(2)(c) 1., Fla. Stat. (2023) (emphasis added). In turn, section 61.13(3), Florida Statutes (2023), prescribes twenty factors for courts to consider in creating or modifying a parenting plan.

Question 20

Can the court make a child custody determination on the other parent’s default?

Answer 20

No. The “best interest of the child” standard precludes a determination of child custody based on a parent’s default. [citations omitted] In making a determination on child custody according to the best interests of the child “guidepost,” the court should have the benefit of the testimony of both parents. [Dellavecchia v. Dellavecchia, 547 So. 2d 287, 287 (Fla. 2d DCA 1989)] (holding that, despite the mother’s default, the issue of custody should be re-evaluated by the trial court on remand).

Question 21

Can parties to a custody agreement, agree to obviate the necessity of proving a substantial and material change in circumstances when seeking a modification.

Answer 21

Yes. Generally, when seeking a modify of a parenting plan, the party seeking the modification must prove a substantial and material change in circumstances. However, when the original agreements includes a provision that provides that the parties agree that timesharing could be revisited without the need of filing a supplemental petition, the court must honor said provision.

Question 22

What is the burden for modifying a parenting plan?

Answer 22

A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child

Question 23

What is required when obtaining ex parte injunctive relief such as precluding a party from removing a child from the court’s jurisdiction?

Answer 23

A showing that providing notice would result in immediate and irreparable injury, loss or damage. Fla. Fam. L.R.P., 12.605.

Question 24

What factors does the court consider when evaluating the best interests of the child in conjunction with establishing or modifying a parenting plan?

Answer 24

“Caring Acts Can Deliver Good Moments, Maintaining Harmony, Regarding Responsibilities, Deepening School Ties, Combating Danger, Enriching Parental Communication, Protecting Substance-Free Practices, Developing Needs.”
1. The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
2. The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
3. The demonstrated capacity and disposition of each parent to determine, consider and act upon the needs of the child as opposed to the needs or desires of the parent.
4. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
5. The geographic viability of the parenting plan, with special attention paid to the needs of school-aged children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
6. The moral fitness of the parents.
7. The mental and physical health of the parents.
8. The home, school, and community record of the child.
9. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
10. The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.
11. The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.
12. The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
13. Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect or evidence that a parent has or has had reasonable cause to believe that he or she or his or her minor child or children are in imminent danger of becoming victims of an act of domestic violence, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of a prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluation the best interests of the child. (GREYSON’S LAW)
14. Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
15. The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
16. The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
17. The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
18. The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
19. The developmental states and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
20. Any other factor that is relevant to the determination of a specific parenting plan, including the timesharing schedule.