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

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

Answer 6

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 7

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

Answer 7

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 8

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

Answer 8

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 9

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

Answer 9

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 10

How does the court review determinations of school boundaries?

Answer 10

Abuse of discretion.

Question 11

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

Answer 11

Yes. Blatt v. Blatt

Question 12

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

Answer 12

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 13

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

Answer 13

(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 14

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

Answer 14

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

Question 15

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

Answer 15

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

Question 16

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

Answer 16

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 17

Can the court delegate parenting matters to a third party?

Answer 17

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 18

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

Answer 18

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 19

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

Answer 19

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 20

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 20

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 21

What is the burden for modifying a parenting plan?

Answer 21

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

Question 22

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

Answer 22

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

Question 23

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

Answer 23

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.

Question 24

Is a court bound by the agreement of the parties when determining issues related to child custody or parental responsibility?

Answer 24

No. A trial court’s responsibility cannot be abdicated to any parent or expert and a court is not bound by any agreement between the parents, nor by the opinions of any expert or group of experts. Pagliaro v. Pagliaro (4th), Lane v. Lane (4th)

Question 25

Does a timesharing schedule have to include a holiday schedule?

Answer 25

Yes. Mills v. Johnson (2nd); Coe v. Rautenberg (4th)

Question 26

Can timesharing be modified on the basis of a procedural default?

Answer 26

No. The Court must consider the best interest of the child.

Question 27

Is the court permitted to award one parent the discretion to determine the other parent’s timesharing or parental decisions?

Answer 27

No. A court may not delegate its responsibility to a third party, including a parent, expert, therapist, child, GAL, PC, mediator, social investigator, etc.

Question 28

When ordering a psychological evaluation of one of the parties, what must the court include in the order?

Answer 28

12.360. Time, place, manner, conditions and scope of the psychological evaluation and the person or persons conducting the evaluation.

Question 29

When did the law change to provide that there is a rebuttable presumption that equal timesharing of a minor child is in the best interests of the minor child?

Answer 29

July 1, 2023.

Question 30

How is the presumption that equal timesharing is in the best interests of the minor children rebutted?

Answer 30

A party seeking to rebut the presumption that equal timesharing is in the best interests of the child must prove by a preponderance of evidence that equal timesharing is not in the best interests of the minor child(ren).

Question 31

When creating or modifying a timesharing schedule (as opposed to one that is agreed to by the parties), what must the court do?

Answer 31

Court must evaluate all of the factors set forth in 61.13(3) and make specific findings of fact.

Question 32

How many best interest factors are there in 61.13(3)

Answer 32

TWENTY.

Question 33

When may a court modify a parenting plan?

Answer 33

Upon a substantial, material change in circumstances and that the modification is in the best interests of the child.

Question 34

What is significant about a parent moving within 50 miles of the other parent if they previously lived more than 50 miles away.

Answer 34

If the parents of a child are residing more than 50 miles apart at the time of the last order establishing TS and a parent moves within 50 miles of the other parent, that is considered a substantial and material change in circumstances- still have to prove the modification is in the best interests of the child.

Question 35

Prior to July 1, 2023, was the court required to make written findings as to all of the best interest factors?

Answer 35

No.

Question 36

What are the remedies when one parent refuses to honor the timesharing schedule without proper cause?

Answer 36

The Court:
1. Shall order make up timesharing in a manner consistent with the best interests of the child and in a manner that is convenient for the parent deprived of timesharing;
2. may order the parent who did not provide timesharing or did not exercise timesharing to pay reasonable costs an attorneys fees incurred to enforce the timesharing schedule;
3. may order the parent who did not provide timesharing or did not exercise timesharing to attend a parenting course;
4. may order the parent who did not provide timesharing or did not exercise timesharing to do community service if it won’t interfere with the welfare of the child;
5. may order the parent who did not provide timesharing or did not exercise timesharing to have the financial burden of promoting frequent and continuing contact when that parent and child reside more than 60 miles from the other parent;
6. may, upon the request of the parent who did not violate the timesharing schedule, modify the parenting plan if modification is in the best interests of the child;
7. may impose any other reasonable sanction.

Question 37

If a parent is withholding timesharing, can the parent being deprived of timesharing stop paying child support and alimony?

Answer 37

No. Child support and alimony shall continue to be paid.

Question 38

Is failure to pay child support or alimony a basis to withhold timesharing?

Answer 38

No.

Question 39

The court may not deny shared parental responsibility and timesharing to a parent solely based on an HIV diagnosis. True or false?

Answer 39

True.

Question 40

Can the court order visitation for a parent who is a resident of a recovery residence?

Answer 40

Yes, but not during the hours of 9 p.m. and 7 a.m. unless the court makes a specific finding that same is in the best interests of the child. However, a court may not order this visitation if any resident of the recovery residence is required to register as a sexual predator.

Question 41

Define “parenting coordination” and what statute controls?

Answer 41

A non-adversarial dispute resolution process that is court ordered or agreed upon by the parties.
F.S. 61.125

Question 42

Define “parenting coordinator”?

Answer 42

An impartial 3rd party appointed by the Court or agreed upon by the parties whose role is to assist the parties in successfully creating or implementing a parenting plan.

Question 43

What is the purpose of parenting coordination?

Answer 43

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.

Question 44

Can the court order parenting coordination in a domestic violence action?

Answer 44

No.

Question 45

If there is a history of domestic violence, can the court refer the parties to a PC?

Answer 45

Not unless both parents consent freely and voluntarily.

Question 46

What are the professional requirements to be qualified as a parenting coordinator?

Answer 46

Meet one of the following:
1. licensed mental health professional
2. licensed physician with a certification by the American Board of Psychiatry and Neurology
3. Florida supreme court family law mediator with at least a master’s degree in a mental health field
4. member in good standing with FL Bar

Question 47

What must a professional complete to be qualified as a PC?

Answer 47

1. 3 years of post-licensure or post-certification practice
2. a family mediation training program certified by the FL Sup Ct
3. a minimum of 24 hours of PC training and 4 hours off DV training

Question 48

Can the court appoint a PC that doesn’t mean the qualifications?

Answer 48

Only if there is a written agreement between the parties.

Question 49

Are communications made in PC confidential?

Answer 49

Yes, but there are exceptions.

Question 50

What are the exceptions to communications with PC being confidential?

Answer 50

(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 under chapter 741; child abuse, neglect, or abandonment under chapter 39; or abuse, neglect, or exploitation of an elderly or disabled adult under chapter 825;

(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.

Question 51

Is the court required to to address the best interest factors in a temporary timesharing order?

Answer 51

No.

Question 52

Is the court required to give a parent concrete steps to restore lost timesharing?

Answer 52

No. C.N. v. I.G.C. 2021

Question 53

When awarding sole parental responsibility, what is the court required to find?

Answer 53

That shared parental responsibility would be detrimental to the child and such finding must be upheld if there is competent substantial evidence.

Question 54

How is evidence of DV relevant to an order setting forth timesharing?

Answer 54

evidence of domestic violence creates a rebuttable presumption of detriment.

Question 55

What is the presumption with regard to timesharing?

Answer 55

There is a rebuttable presumption that equal timesharing is in the best interests of the minor child. *law change in 2023

Question 56

How does one rebut the presumption that equal timesharing is in the best interests of the minor child?

Answer 56

Must prove by a preponderance of the evidence that equal timesharing is not in the best interests of the child. The court must evaluate all of the factors in subsection 3 (20 factors) and make specific written findings of fact when creating or modifying a timesharing schedule. * law change in 2023

Question 57

If parents are residing more than 50 miles apart at time of entry of last timesharing order, and one parent moves within 50 miles of the other parent, does the parent moving within 50 miles have the ability to modify?

Answer 57

Yes, moving within 50 miles of the other parent is considered a substantial and material change in circumstances, so long as there a determination that modification is in the best interests of the child. *law change in 2023

Question 58

How does a court determine the best interests of a minor child when establishing or modifying parental responsibility and/or timesharing?

Answer 58

By evaluating the 20 factors set forth in 61.13 (3)