FINAL CRAM FLASHCARDS
What are the 3 types of marital agreements?
Prenuptial Agreements
Postnuptial Agreements
Marital Settlement Agreements
What is a Prenuptial Agreement?
It is executed prior to the marriage and sets forth spousal rights and obligations in the event of death or divorce.
What is a Postnuptial Agreement?
It is executed after the marriage, but not in contemplation of or after the commencement of dissolution of marriage litigation. It sets forth spousal rights and obligations in the event of death or divorce.
What is a Marital Settlement Agreement?
It is executed after marriage and prepared in contemplation of, or after the commencement of dissolution litigation. It determines how the parties’ existing marital and separate property rights and obligations should be distributed, as well as to determine the support provisions of the dissolution of action.
How are marital settlement agreements interpretated?
Interpretation of an MSA begins with a review of the plain language of the agreement because the contract language is the best evidence of the parties’ intent at the time of the execution of the contract. Where the terms of the MSA are clear and unambiguous, the parties’ intent must be gleaned from the four corners of the document. A court may not remake a settlement agreement under the guise of interpretation, even where an ambiguity exists.
How does one challenge a Prenuptial Agreement that was entered into before October 1, 2007?
In accordance with Casto v. Casto.
How does one challenge a Postnuptial Agreement?
In accordance with Casto v. Casto.
What are the two methods to challenge an agreement pursuant to Casto v. Casto?
Direct and indirect.
What is the direct method under Casto?
An agreement may be set aside upon establishing that it was procured by fraud, deceit, duress, coercion, misrepresentation or overreaching.
What is duress?
The act sought to be set aside had to be affected involuntarily and not as an exercise of free choice or will; and that this condition of mind was caused by some improper or coercive conduct of the other spouse?
What is the indirect method under Casto?
The challenging spouse must establish that the agreement makes an unfair or unreasonable provision for that spouse, given the circumstances of the party. Once unfairness is established, a presumption arises that there was either concealment or a presumed lack of knowledge of the defending spouse’s finances at the time the agreement was reached. Then, the burden shifts to the defending spouse to rebut the presumption. The presumption may be rebutted upon a showing by the defending spouse that: (a) the defending spouse made full, frank, financial disclosure; or (b) the challenging spouse had a general knowledge of the character and extent of the other party’s assets and income.
When is unfairness or fairness measured when challenging an agreement through the Casto indirect method?
At the time the agreement was executed, not the dissolution of marriage.
What type of evidence does the court consider in determining fairness of an agreement when challenging an agreement through the Casto indirect method?
Challenging spouse must present evidence of the parties’ relative situations, including their respective ages, health, education and financial status.
What is the UPAA?
Uniform Premarital Agreement Act.
When was UPAA enacted?
October 1, 2007.
What statute enacted the UPAA?
61.079
What agreements does the UPAA apply to?
Prenuptial/premarital agreements entered into on or after October 1, 2007.
What does the UPAA provide with regard to premarital agreements?
They must be in writing and signed by both parties. Allows parties to address all substantive rights in the agreement. After the marriage, the agreement may only be amended, revoked or abandoned by written agreement signed by both parties. Also sets forth two bases to set aside premarital agreements entered into after October 1, 2007.
What are the biggest changes to challenging the validity of a prenuptial agreement after UPAA?
The entire burden is on the challenging party. Prior to UPAA, the burden shifted to the defending party to rebut the presumption of concealment once the challenging party proves the agreement was unfair or unreasonable.
If the agreement waives alimony, thereby leaving a spouse eligible for support under a program of public assistance at the time of the dissolution, then notwithstanding the terms of the agreement, the other party may be required to provide support to the extent necessary to avoid that eligibility.
How does one challenge the validity of a prenuptial agreement that was entered into after October 1, 2007?
A premarital agreement is not enforceable if the party against whom enforcement is sought proves:
1. the party did not execute the agreement voluntarily;
2. the agreement was the product of fraud, duress, coercion, or overreaching; or
3. the agreement was unconscionable when it was executed AND, before execution of the agreement, the challenging party:
a. was not provided fair and reasonable disclosure of the property or financial obligations of the other party; and
b. did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
c. did not have or reasonably could not have had an adequate acknowledge of the property or financial obligations of the other party.
Once a marital settlement agreement is incorporated into a final judgment, how does the party seeking relief from the agreement proceed?
In accordance with Fla. Fam. L.R.P., 12.540 (Relief from Judgments).
Does Fla. Fam. L.R.P., apply to postnuptial agreements?
Only if the agreement was entered into after the dissolution of marriage action was commenced.
How is paternity established under 742.10?
- Establishment of paternity has been raised and determined in an adjudicatory hearing;
- Affidavit/stipulation acknowledging paternity is executed by both parties and filed with the Clerk of Court;
- Notarized Voluntary Acknowledgement of Paternity or Voluntary Acknowledgment of - Paternity witnessed by two individuals and signed under penalty of perjury is signed by both parties (birth certificate); and both parent’s SS numbers are on it and it was not rescinded after 60 days;
- Paternity established by DOR.
What happens if a Voluntary Acknowledgement of Paternity signed by both parents is not rescinded within 60 days?
Paternity is established and can only be challenging on the basis of fraud, duress, or material mistake of fact, with the burden on the challenger.
What must be included in a Petition to Disestablish Paternity?
- Affidavit executed by Petitioner that newly discovered evidence relating to the paternity of the child has come to Petitioner’s knowledge since the paternity determination or establishment of child support;
- Scientific testing results, within 90 days prior to the filing of the Petition indicate that the male cannot be the father of the child; or an affidavit executed by the Petitioner stating he did not have access to the child to have scientific testing performed prior to the filing of the Petition;
- Affidavit executed by Petitioner stating that he is current on his child support payments or that he has substantially complied with his child support obligation and that any delinquency in the child support obligation arose from his inability just cause to pay.
When SHALL the court grant the relief requested in a Petition to Disestablish Paternity?
Upon a finding of ALL OF THE FOLLOWING:
- Newly discovered evidence relating to the paternity of the child has come to Petitioner’s knowledge since the initial paternity determination or establishment of child support;
- Scientific testing was properly conducted;
- Male ordered to pay child support is current on all child support payments or has substantially complied with child support obligation and that any delinquency is based on his inability to pay;
- Male has not adopted the child;
- Child was not conceived by artificial insemination wile the male and mother were in wedlock;
- Male did not act to prevent the biological father from asserting parental rights;
- Child was younger than 18 when petition was filed.
When is the court prohibited from disestablishing paternity?
When the male engaged in the following conduct AFTER learning he was not the father of the child:
- Married the mother and voluntarily assumed the parental obligation and duty to pay child support;
- Acknowledged paternity in a sworn statement;
- Consented to being named as bio dad on the child’s birth certificate;
- Voluntarily promised in writing, to support the child;
- Received written notice from a state agency or court directing him to submit to scientific testing which he disregarded; or
- Signed a voluntary acknowledgment of paternity.
What is the presumption of legitimacy?
The law presumes that the husband of a biological mother of a child is the child’s legal father.
Does a biological father have standing to rebut the presumption of legitimacy?
When he has manifested a substantial and continuing concern for the welfare of the child.
How can the presumption of legitmacy be overcome?
When there is a clear and compelling reason based primarily on the child’s best interests.
Before a blood test can be ordered in cases in which a presumption of legitimacy is raised by a putative father, what is the court required to do?
The court is required to hear argument from the parties, the legal father if he wishes to appear, and a GAL appointed to represent the child and possibly HRS.
What must a movant seeking to rebut the presumption of legitimacy prove in order to have a blood test ordered?
Movant has the burden to prove, by clear and convincing evidence, the following:
- complaint is apparently factually accurate;
- is brought in good faith;
- is likely to be supported by reliable evidence;
- the child’s best interests will be served even if the blood test later proves the child’s factual illegitimacy
If it is proven that the legal father is not the biological father, is the presumption of legitimacy automatically overcome?
No, it is not automatic. There still must be a clear and compelling reason why it is in the child’s best inserts to overcome the presumption of legitimacy.
When and how was same-sex marriage legalized in FL?
In June, 2015 by the U.S. Supreme Court in Obergefell v. Hodges.
When a birth mother is married, who is on the birth certificate?
Florida Department of Health puts the name of the birth mother and the birth mother’s spouse on the child’s birth certificate.
Does a donor of egg, sperm or pre-embryo have the ability to assert parental rights?
Per 742.14, the donor of any egg, sperm or pre-embryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement, shall relinquish all maternal or paternal rights and obligation with respect tot he donation or resulting children.
When a sperm donor conceived a child by sexual intercourse, does the sperm donor have the ability to assert parental rights?
Yes, because it does not meet the formalities of 742.14.
When a sperm donor conceived a child by at home artificial insemination, does the sperm donor have the ability to assert parental rights?
Certified conflict. Enriquez v. Valazquez says sperm donor may bring paternity suit, but Rivero v. Salas (Brito) says sperm donor may not bring paternity lawsuit.
How is jurisdiction established in a paternity case?
Paternity comes first, prior to custody. Therefore, even if Florida is the home state of the child, if paternity hasn’t been established and the sex act did not occur in Florida, there is no personal jurisdiction to establish paternity.
If custody is being determined in a paternity case, how is subject matter jurisdiction obtained?
UCCJEA.
What must be addressed in a final judgment of paternity other than the paternity itself.
Child support.
What is the first step in establishing alimony?
The party seeking support has the burden of proving his/her need for support and the other party’s ability to pay. The court must make a specific factual finding as to an actual need and ability to pay.
What is the second step in establishing alimony?
If the court finds that the party seeking support has a need for it and the other party has the ability to pay, the court must then determine the proper form or forms of alimony or deviation therefrom by considering the relevant factors.
What are the alimony factors?
EIGHT
1. Duration of the marriage
2. Standard of living established during the marriage and the anticipated needs and necessities of each party after entry of FJ.
3. Age, physical, mental, and emotional condition of each party, including whether either party is physically or mentally disabled and the resulting impact on either the oligee’s ability to provide for his or her own needs or the obligor’s ability to pay alimony and whether such conditions are expected to be temporary or permanent.
4. Resources and income of each party, including the income generated from both nonmarital and marital assets.
5. Earning capacities, educational levels, vocational skills, and employability of the parties, including the ability of either party to obtain the necessary skills or education to become self-supporting or to contribute to his/her self-support prior to the termination of the support, maintenance or alimony award.
6. Contribution of each party to the marriage, including services rendered in homemaking, child care, education and career building of the other party.
7. Responsibilities each party will have with regard to any minor children whom the parties have in common, with special consideration given to the need to care for a child with a mental or physical disability.
8. Any other factor necessary for equity and justice between the parties, which shall be specifically identified in the written findings of fact. This may include a finding of supportive relationship or reasonable retirement.
When can the court award security for an alimony award?
To the extent necessary to protect an award of alimony, the court may order the obligor to purchase and maintain a life insurance policy or bond based on specific findings that there are special circumstances to warrant same.
If the court orders security for an alimony award, who pays for the security?
The court may apportion costs based on a determination of the ability of the obligee and obligor to pay such costs.
What are the presumptions regarding the duration of marriage for purposes of alimony?
Under 10 years- short term marriage
10-20 years - moderate term marriage
More than 20 years- long term marriage
What is the maximum duration of a durational alimony award in a marriage of less than 10 years?
Up to 50% the length of the marriage.
What is the maximum duration of a durational alimony alimony award in a marriage between 10-20 years?
Up to 60% the length of the marriage.
What is the maximum duration of a durational alimony award in a marriage of more than 20 years?
Up to 75% the length of the mariage.
What types of alimony exist under Fla. Stat. 61.08?
- temporary
- bridge-the-gap
- rehabilitative
- durational
What statute governs temporary alimony?
Fla. Stat. 61.071.
What is temporary alimony?
Support awarded during the pendency of the proceeding. Temporary alimony shall be awarded upon a well-founded request while a dissolution of marriage action is pending.
Is temporary alimony modifiable?
Yes, upon a finding of good cause. SCC is not necessary.
When does temporary alimony terminate?
Time set forth in the order OR entry of the Final Judgment dissolving the marriage.
Can temporary alimony be waived by agreement?
No. Belcher v. Belcher.
What is the standard of review of temporary alimony?
Abuse of discretion. This is one of the areas where the court has the most discretion.
How is the amount of temporary alimony determined?
Based on need and ability to pay.
What is bridge-the-gap alimony?
Provides support to a party in making the transition from being married to being single and assists a party with legitimate, identifiable, short term needs.
How is the amount of bridge-the-gap alimony determined?
Based on need and ability to pay.
What is the maximum duration of a bridge-the-gap alimony award?
2 years.
Is bridge-the-gap alimony modifiable?
No. It is not modifiable in amount or duration.
When does bridge-the-gap alimony terminate?
Upon the death of either party or upon the remarriage of the obligee.
What is rehabilitative alimony?
Provides assistance to a party in establishing the capacity for self-support through either:
- redevelopment of previous skills or credentials; or
- acquisition of education, training or work experience necessary to develop appropriate employment skills or credentials.
What is the maximum duration of rehabilitative alimony?
5 years.
Is rehabilitative alimony modifiable?
Yes, based on a SCC.
When does rehabilitative alimony terminate?
Upon non-compliance with the rehabilitative plan or upon completion of the rehabilitative plan if before expiration.
What is durational alimony?
Provides a party with economic assistance for a set period of time.
Is durational alimony modifiable?
Duration alimony is modifiable in amount based on a SCC. It is non-modifiable to duration except under exceptional circumstances and may not exceed the length of the marriage.
When can the court extend the term of durational alimony and what is the burden of proof?
Under exceptional circumstances, the court may extend the term of durational alimony by a showing of clear and convincing evidence that it is necessary after application of the alimony factors and the additional factors of: FOUR
(1) extent to which obligee’s age and employability limit the obligee’s ability for self-support, in whole or in part;
(2) extent to which the obligee’s available finanical rsources limit the obligee’s ability for self-support, either in whole or in part;
(3) the extent to which the obligee is mentally or physically disabled or has been diagnosed with a mental or physical condition that has rendered, or will render, him or her incapable of self-support, either in whole or in part;
(4) the extent to which the obligee is the caregiver to a mentally or physically disabled child, whether or not the child has attained the age of majority, who is common to the parties.
Any extension terminates upon the child no longer requiring caregiving by the obligee, or upon death of child unless one of the other factors in this paragraph apply.
When does durational alimony terminate?
Upon the death of either party or remarriage of the obligee.
How is the amount of durational alimony determined?
Obligee’s reasonable need or an amount not to exceed 35% of the difference between the parties’ net incomes, whichever is less.
When can an award of alimony be modified?
Upon a clear showing that there has been a substantial change in the financial circumstances of either party that occurred after the entry of the order award alimony. It must be a substantial involuntary, permanent, change in circumstances that was not contemplated at the time of the final judgment.
Is a supportive relationship grounds to modify or terminate an alimony award?
The court must reduce or terminate an award of alimony upon specific written findings by the court, that the supportive relationship has existed between the obligee and a person who is not related to the obligee.
Burden to modify based on supportive relationship?
The burden is on the obligee to prove, by a preponderance of the evidence, that the supportive relationship exists or has existed in the 365 days before filing the petition to modify. If proven, the burden shifts to the obligor to prove, by a preponderance of the evidence that the court should not deny or reduce an initial alimony award or reduce or terminate an existing award of alimony.
What factors shall the court consider when modifying or terminating alimony based on a supportive relationship?
61.08 factors and the following additional factors: ELEVEN
(1) the extent to which the obligee and other person held themselves out as a married couple;
(2) the period of time the couple resided together;
(3) the extent to which the obligee and other person have pooled assets/income, acquired/maintained a joint financial account or exhibited financial interdependence;
(4) the extent to which the couple is financially supporting one another;
(5) the extent to which the obligee has performed valuable services for the other person;
(6) the extent to which the obligee performed valuable services for the other’s business or employer;
(7) the extent to which the couple worked together to acquire assets or enhance the value of assets;
(8) the extent to which the obligee and other person have jointly contributed to the purchase of real or personal property;
(9) express or implied agreement regarding property sharing or support;
(10) the extent to which the obligor has paid the alimony or failed to do so and the amount of the arrearage;
(11)the extent to which the obligee and other person provided support to the children or other family members of each other
court must make written findings of fact regarding all relevant factors
Is retirement a basis to modify an alimony award?
The court may reduce or terminate an award of alimony upon specific written findings of fact that the obligor has reached normal retirement age or customary retirement age for his/her profession and has taken steps to retire or has actually retired.
Burden to modify based on retirement?
The burden is on the obligor to prove, by a preponderance of the evidence, that retirement reduces his/her ability to pay alimony. Once proven, the burden shifts to the obligee to prove, by a preponderance of the evidence that alimony should not be terminated or reduced.
What factors must the court consider when the obligor seeks to reduce or modify based on reasonable retirement.
The court shall consider the following factors: TEN
(1) age and health of obligor;
(2) nature and type of work performed by obligor;
(3) customary age of retirement for obligor’s profession;
(4) obligor’s motivation for retirement and likelihood of returning to work;
(5) needs of obligee and ability of obligee to contribute to his/her basic needs;
(6) economic impact the reduction or termination would have on the obligee
(7) all assets of the parties accumulated or acquired prior tot he marriage, during the marriage and after entry of the final judgment as well as their respective roles in the wasteful depletion of marital assets received by him/her at the time of the final judgment
(8) income of the obligee and obligor earned during an after final judgment;
(9) social security benefits, retirement and pension benefits payable to the parties;
(10) obligor’s compliance with the existing alimony obligation.
Can the court modify a pre 2023 permanent alimony award to a durational alimony award?
Yes. See Valby v. Valby.
Is a modification of alimony retroactive?
Yes, to the date of filing the supplemental petition.
Can the court temporarily suspend or abate alimony if there is a change in circumstances but that change in circumstances is not permanent?
Yes.
If an arrearage of alimony exists, is the amount of the arrearage modifiable?
No.
What is the procedure for equitable distribution?
(1) Identify
(2) Classify
(3) Value
(4) Distribute
What are marital assets?
(1) Assets acquired/liabilities incurred during the marriage;
(2) Enhancement in value and appreciation of non-marital assets resulting from marital efforts (including labor) or contribution of marital funds;
(3) Paydown of principal of note/mortgage from marital funds and a portion of the passive appreciation of a non-marital property;
(4) Interspousal gifts;
(5) Vested and non-vested retirement benefits accrued during the marriage;
(6) Real and personal property titled as tenants by the entireties;
(7) Marital interests in closely held businesses.
What are non-marital assets?
(1) Assets acquired/liabilities incurred prior to the marriage and assets/liabilities in exchange for such;
(2) Assets acquired separately by non-interspousal gift and assets/liabilities in exchange for such;
(3) Income derived from non-marital assets unless such income is treated or relied upon as marital;
(4) Assets/liabilities excluded by valid written agreement and assets/liabilities in exchange for such;
(5) Liability incurred by forgery;
(6) Real property acquired separately by non-interspousal gift that hasn’t been transferred to tenants by the entirety.
Who has the burden of proving an asset is non-marital?
The burden is on the party seeking to establish the asset or liability is nonmarital. Once established, the burden shifts to the other party to establish that the asset is marital or has a marital portion.
What is the burden to overcome the gift presumption?
Clear and convincing evidence.
What creates a rebuttable gift presumption?
Putting other spouse’s name on the title of the asset.
How is the marital portion of a non-marital real property determined?
Utilizing a coverture fraction.
NUMERATOR = paydown of principal from marital funds
DENOMINATOR = value of the property on the date of marriage (or acquisition or date it was encumbered, whichever is later)
Passive appreciation (current value - value at date of marriage) is multiplied by the coverture fraction to determine the marital portion of the passive appreciation
The total marital portion of the non-marital real property is the marital portion of the passive appreciation, plus the principal paid down from marital funds, plus any active appreciation, not to exceed the total net equity in the property
What is the hooker fix?
Interspousal gifts of real property must be in writing in conformity with statute of frauds. Joinder of a spouse in the execution of a deed for the sole purpose of transferring homestead property to any person or entity other than the spouse or both spouses jointly does not change the character of the real property or any proceeds thereof, to marital property.
How does the court determine the value of marital interests in a closely held business?
Fair Market Value which is defined as the price at which property would change hands between a willing and able buyer and a willing and able seller, with neither party under compulsion to buy or sell and where both parties have reasonable knowledge of the relevant facts.
If there is good will separate and distinct from the continued presence and reputation of the shareholder spouse, it is considered enterprise good will which is marital property.
The court must consider evidence that a covenant not to compete or similar restrictive covenant may be required upon the sale of the business, but such evidence does not preclude the court from finding enterprise good will.
Codification of Thompson v. Thompson
What is personal goodwill?
Goodwill separate and distinct from the shareholder’s continued presence and reputation
What are the standards of review of equitable distribution?
Identification and Classification = de novo
Valuation and Distribution = abuse of discretion
What is the cutoff date for identification and classification?
Date of filing or date of valid separation agreement/writing.
What date is used to value marital assets?
There is no bright line rule. The valuation date is discretionary based on what is just and equitable under the circumstances. Can be date of filing, date of separation, date of trial/distribution, or any other date the court finds is just and equitable under the circumstances.
How does the court divide the marital assets/liabilities?
After setting aside the non-marital assets and liabilities, the court must begin with the premise that the distribution should be equal, unless there is justification for an unequal distribution based on all of the relevant factors.
What factors must the court consider to justify an unequal distribution of marital assets/liabilities?
TEN
(1) Contribution to the marriage including childcare/homemaking;
(2) Economic circumstances of the parties;
(3) Duration of the marriage;
(4) Interruption of personal careers/education of each spouse;
(5) Contribution of one spouse to the personal career/education of the other spouse;
(6) Desirability of retaining an asset such as a business free from interference of the other spouse;
(7) Contribution of each spouse to the acquisition of assets, income and liabilities;
(8) Desirability of retaining the marital home;
(9) Intentional Dissipation;
(1) Any other factors.
Are factual findings required in equitable distribution award?
In any contested dissolution of marriage proceeding where there has been no stipulation or agreement, any distribution of marital assets/liabilities shall be supported by factual findings in the judgment or order based on competent, substantial evidence with reference to the factors.
What specific written findings of fact must be included in an order awarding equitable distribution?
The order/judgment shall include:
(1) Clear identification of non-marital assets and ownership interests;
(2) Identification of marital assets, including the individual valuation of significant assets, and designations of which spouse shall be entitled to each asset;
(3) Identification of marital liabilities and designation of which spouse shall be responsible for each liability;
(4) Any other findings necessary to advise the parties or the reviewing court of the trial courts rationale for the distribution of assets and liabilities.
What can the court do to equalize the marital estate?
Require one party to pay the other party. Payment may be a lump sum payment or may be ordered to be made in installments. If installments are ordered, the court may require security and a reasonable rate of interest or may otherwise recognize the time value of the money to be paid in the judgment or order .
Are property settlements enforceable?
Yes, but by contempt, except that the court can punish by contempt for failure to perform an act.
Can property settlements be modified?
No.
Are partition actions required to be plead?
There is a split in the districts.
When can the court order an interim partial distribution?
Upon good cause shown and upon a sworn motion establishing the specific factual basis for the motion. The motion must demonstrate good cause why the matter should not be deferred until the final hearing.
How is good cause defined for purposes of justifying an interim partial distribution?
Good cause is defined as extraordinary circumstances that justify an interim partial distribution.
What shall the court consider in determining if there are extraordinary circumstances for purposes of an interim partial?
FOUR
(1) Whether there is a need for funds in order to avoid or prevent the loss of an asset through repossession or foreclosure, the loss of housing, the default of either party of a marital debt, or the levy of a tax lien;
(2) Whether there is a need for funds to pay an expense of a dependent child if non-payment of the expense would be detrimental to the child;
(3) Whether on or both parties need access to the funds to pay a reasonable amount of attorney’s fees, court costs, or other suit money ;
(4) Any other circumstance.
What must be included an order awarding an interim distribution?
Specific findings of fact that any partial distribution will not cause inequity or prejudice to either party as to either party’s claims for support or attorney’s fees.
What is the purpose of UIFSA?
To extend the enforcement and collection of child support and sometimes spousal support.
What is the corresponding Federal Statute to UIFSA?
Full Faith and Credit for Child Support Orders Act (FFCCSOA)
Is personal jurisdiction required under UIFSA?
Yes, because you are seeking to impose a financial obligation on someone.
How can personal jurisdiction be obtained over a non-resident under UIFSA?
EIGHT
(1) Personal service in FL;
(2) Consent or waiver;
(3) Resided in FL with the child;
(4) Resided in Florida and provided prenatal expenses and/or child support;
(5) Child resides in Florida as a result of acts of the Respondent;
(6) Sex in Florida that resulted in child;
(7) Asserting parentage in FL or registered in FL Putative Father Registry.
(8) Any other basis per FL and/or U.S. Constitutions.
What happens when there are simultaneous proceedings under UIFSA?
Florida may exercise jurisdiction to establish a support order if the Petition is filed after a Petition in another state IF:
(1) The Petition in Florida is filed before the expiration of the time allowed in the other state to file a responsive pleading challenging jurisdiction; and a timely challenge is filed in the other state;
(2) If both states have jurisdiction, the child’s home state wins.
What is the home state per UIFSA?
State where child lived with a parent or person acting as a parent for at least 6 consecutive months immediately preceding the filing of the petition and if the child is less than 6 months, then the state the child lived in since birth.
Continuing, Exclusive Jurisdiction to modify child support under UIFSA?
The issuing state keeps continuing, exclusive jurisdiction to modify child support until none of the parties or children remain in that state unless the parties consent to keep CEJ in the issuing state despite the fact that no one lives there anymore.
Continuing Exclusive Jurisdiction to modify spousal support?
The issuing state keeps continuing, exclusive jurisdiction to modify spousal support throughout the existence of the support obligation.
Can state courts modify spousal support orders issued in other states?
No, state courts may not modify out of state spousal support orders because issuing states retains CEJ throughout the existence of the order.
Does Continuing Exclusive Jurisdiction under UIFSA apply to enforcement actions?
No. CEJ does not prevent Florida or another state from enforcing an existing support order.
How is an out of state support order registered in FL?
By sending:
(1) a letter of transmittal requesting registration and enforcement;
(2) two copies (one certified) of the order;
(3) a sworn statement by the person requesting registration or certified statement of custodian of records showing the amount of any arrearage;
(4) name of obligor and if known, obligor’s SS #, address, employer and description of obligor’s property.
What are the defenses to registration of an out of state support order?
(1) issuing state lacked personal jurisdiction;
(2) order was obtained by fraud;
(3) order has been vacated, suspended or modified;
(4) defense under law of the other state to the remedy sought;
(5) full or partial payment;
(6) statute of limitations precludes enforcement;
(7) order is not the controlling order.
When can FL modify an out of state child support order?
When the order entered in the other state is registered in Florida, and after notice and hearing, FL finds that the following has been met:
(1) Neither child or parties reside in the issuing state;
(2) a non-resident petitioner seeks modification;
(3) respondent is subjection to personal jurisdiction; or
(4) FL is the state of residence of the child, or a party who is an individual and is subject to the personal jurisdiction of this state and all parties have filed consents in a record in the issuing state for FL to modify the support order and assume CEJ.
Under UIFSA, are there any limitations on modifying out of state child support orders?
The new amount of support is set according to the support guideline of the modifying state, however, the modifying state cannot change the duration of the ongoing child support obligation.
Are out of state child support orders that violate FL public policy, enforceable in FL?
Yes. Florida cannot refuse to enforce an out of state child support order that violates FL public policy.
Controlling order under UIFSA.
If there is only one order, that order is the controlling order. If there is more than one order, then:
- if only one state would have CEJ, that order controls
- if more than one state would have CEJ, the order in the home state of the child wins, if an order hasn’t been issued in the home state, the most recent order is the controllign order
What is the purpose of the UCCJEA?
To ensure custody decrees are rendered in the best state to decide the best interests of the child.
What is the corresponding Federal Statute to UCCJEA?
PKPA.
Is personal jurisdiction necessary to enter a child custody determination?
No, however, the binding effect of the order can only be imposed on those who were served or notified.
What is the home state of the child per UCCJEA?
Where the child lived with a parent or person acting as a parent for at least 6 consecutive months immediately before commencement of child custody proceeding; or if Florida qualified as the child’s home state at any time during the six months preceding the filing.
What happens when there are simultaneous proceedings under UCCJEA?
Home state wins. If there is no home state and both states have significant connections, the first court to commence proceedings wins.
When does FL have jurisdiction to make an initial child custody determination?
(1) Florida is the home state of the child or was the home state of the child within 6 months before commencement of the action;
(2) when no other court has jurisdiction or the home state has declined to exercise jurisdiction on the grounds that FL is the more appropriate forum; and
(a) the child and parents, or the child and one parent have a significant connection
with this state; and (b) substantial evidence is available in FL concerning the child’s
care, protection, training and personal relationships;
(3) all states having jurisdiction have declined on the grounds that FL is the more appropriate forum; or
(4) no other court would have jurisdiction.
Exclusive, Continuing Jurisdiction under UCCJEA?
When FL made an initial custody determination, FL has exclusive, continuing jurisdiction over the determination until:
(1) FL determines that the child and parents do not have significant connection with it and substantial evidence is no longer available;
(2) issuing state or another state determines no one resides in the issuing state;
(3) FL may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is the more appropriate forum.
When does FL have temporary emergency jurisdiction under UCCJEA?
When a child is present in FL and has been abandoned or it is necessary in an emergency to protect the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse; or
it is necessary to protect the child because the child has been subjected to or is threatened with being subjected to sex-reassignment prescriptions or procedures.
Once FL invokes temporary emergency jurisdiction under UCCJEA, how long does the emergency FL order stay in effect?
Until an order is obtained from a court of a state having jurisdiction
Does a court being asked to make a temporary emergency child custody determination have a duty to communicate with the other court?
Yes, a court being asked to make a temporary emergency child custody determination must immediately communicate with the other court.
What is required when two courts communicate regarding a temporary emergency child custody order?
The parties must be allowed to participate and be given an opportunity to present evidence and argument; a record must be made and the parties must be granted access to the record.
Does temporary emergency jurisdiction confer jurisdiction to make an initial child custody determination?
No.
How does a party seeking to enforce or modify an out of state child custody determination register the order?
By sending:
(1) a letter or other document requesting registration;
(2) two copies (one certified) of the determination sought to be registered and a statement under penalties of perjury of the person seeking registration, that the order has not been modified; and
(3) the name and address of the person seeking registration and any parent or person acting as a parent.
Does FL have exclusive continuing jurisdiction under UCCEA if one parent remains in FL?
Yes.
When can FL modify an out of state child custody determination?
Only when FL has jurisdiction to make an initial determination and the court of the other state determines it no longer has ECJ or that FL would be a more convenient forum; or a court of this state or court of another state determines that the child, child parents and any person acting as a parent no longer reside in the other state.
Is there a public policy exception to enforcing an out of state child custody determination?
No. Full faith and credit applies.
Does UCCJEA provide for expedited enforcement?
Yes, upon the filing of a petition, the court shall issue an order directing the respondent to appear in person at the hearing and it must be held on the next judicial day after service, unless impossible, in which case the court will hold the hearing as soon as possible.
Is there a basis for attorney’s fees under UCCJEA?
Yes, provides prevailing party attorney’s fees and provides for travel and other necessary expenses so long as the court has personal jurisdiction.
What is the purpose of the Hague Convention on the Civil Aspects of International Child Abduction?
To protect children from the harmful effects of abduction and retention across international boundaries. It provides a procedure to bring about the prompt return of wrongfully abducted children.
How does one establish a prima facie case under the Hague Convention?
To establish a case under the Hague Convention, the Petitioner must show, by a preponderance of the evidence that:
1. Child under 16
2. Wrongfully removed outside the child’s habitual residence.
3. Removal was in violation of rights of custody.
4. Rights of custody were actually being exercised.
What is the corresponding Federal Statute to Hague.
ICARA. It vests jurisdiction over claims brought upon the convention in both U.S. District Courts and state courts.
What happens to a Hague proceeding if the child turns 16 during the proceeding?
Hague no longer applies once the child turns 16.
What is the definition of habitual residence?
There is no definition. Rather, it depends on the totality of the circumstances. It cannot be agreed to by the parties.
What does it mean that rights of custody “were actually being exercised”
Whenever a parent with rights of custody keeps, or seeks to keep any sort of regular contact with the child.
What are the article 12 defenses to a Hague action?
Article 12 Defenses are:
(1) One year rule
(2) Now Settled.
What is the “one year rule” defense?
The Petition must be filed within 1 year from the wrongful removal or retention, or the now settled defense can be asserted.
What is the “now settled” defense?
Petition may be denied if the child is now settled in its new environment.
What factors does the court evaluate in determining if the now settled defense applies?
(1) child’s age
(2) stability and duration of child’s residence in their new environment
(3) child attend school or day care consistently
(4) friends and relatives
(5) participation in community or extracurricular activities
(6) respondent’s employment and financial stability
What are Article 13 defenses to a Hague Petition.
(1) Not actually exercising custody rights
(2) Consent or acquiescence
(3) Grave risk
(4) Mature child objects.
What is the Not Actually Exercising Custody Rights defense?
When the Petitioner was not actually exercising custody rights at the time of the wrongful removal or retention.
What is the consent or acquiescence defense?
When the left behind parent subsequently acquiesced.
What is the grave risk defense?
If return would put the child in grave risk of harm or in an intolerable situation. Respondent bears the burden to prove same by clear and convincing evidence.
What is the mature child objects defense?
If a child objects and has attained an age and degree of maturity at which it is appropriate to take into account the child’s views.
What is the article 20 defense?
Public Policy: when returning the child violates the fundamental principles of the requested state related to the protection of human rights and fundamental freedoms.
Who has the burden of proof in a Hague case?
The Petitioner must prove the case in chief by a preponderance of the evidence. The Respondent must prove the defenses. Preponderance of the evidence applies to the case in chief, one-year defense, not exercising custody and consent. Clear and convincing applies to grave risk and public policy.
Who pays fees in a Hague case?
Respondent pays Petitioners fees and costs unless it would be clearly inappropriate.
What are the five types of injunctions for protection?
(1) Domestic Violence
(2) Sexual Violence
(3) Repeat Violence
(4) Dating Violence
(5) Stalking
What is a Parenting Plan?
A document created to govern the relationship between the parents relating to the decisions that must be made regarding the minor child and must contain a timesharing schedule for the parents and child’s. Issues concerning the child may include, education, health care and physical social and emotional well being.
What are the minimum elements required in a Parenting Plan?
Parental responsibility
Timesharing
Designate who will be responsible for health care, school related matters and other activities and methods of technologies parents will use to communicate with the child.
It must also address all jurisdictional issues.
Can the court delegate parental decisions to third parties?
No, the court cannot delegate decision making authority to any third party, including a parent, child, counselor, therapist, GAL, PC, mediator or social investigator. The Court shall determine all matters related to parenting and timesharing.
How can you modify a parenting plan and/or timesharing schedule?
Upon a showing of a substantial and material change in circumstances and a determination that the modification is in the best interests of the minor child.
What is the public policy of FL with regard to timesharing and visitation?
It is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys of childrearing.
What presumptions exist with regard to timesharing?
Effective July 1, 2023, there is a rebuttable presumption that equal time-sharing of a minor child is in the best interests of a minor child. To rebut this presumption, a party must prove, by a preponderance of the evidence, that equal time-sharing is not in the best interests of the minor child. Except when a timesharing schedule is agreed 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 timesharing schedule.
How is the presumption of equal timesharing rebutted?
A party must prove, by a preponderance of the evidence, that equal time-sharing is not in the best interests of the minor child by, evaluating all of the factors set forth in subsection 3 and make specific written findings of fact when creating or modifying a timesharing schedule.
What are the best interest factors?
TWENTY
o (a) 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.
o (b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
o (c) 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.
o (d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
o (e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age 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.
o (f) The moral fitness of the parents.
o (g) The mental and physical health of the parents.
o (h) The home, school, and community record of the child.
o (i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
o (j) 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.
o (k) 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.
o (l) 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.
o (m) 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 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 evaluating the best interests of the child. (The bold language was added to the statute effective July 1, 2023).
o (n) 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.
o (o) 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.
o (p) The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
o (q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
o (r) 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.
o (s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
o (t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
Are written findings of fact required with regard to all of the factors?
Yes, the court must evaluate all factors and make written findings of fact since July 1, 2023.
Is relocation considered a substantial change in circumstances.
No, however, if the parents of a child are residing greater than 50 miles apart at the time of the entry of the last order establishing time-sharing and a parent moves within 50 miles of the other parent, then that move may be considered a substantial and material change in circumstances for the purpose of a modification to the time-sharing schedule, so long as there is a determination that the modification is in the best interests of the child.
What is shared parental responsibility ?
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.
When is the court permitted to order something other than shared parental responsibility?
The court shall order that parental responsibility is hared by both parents unless the court finds that shared parental responsibility would be detrimental to the child.
What is sole parental responsiblity?
Court-ordered relationship in which one parent makes decisions regarding the minor child.
When can the court order sole parental responsibility?
When shared parental responsibility would be detrimental.
Does sole parental responsibility have to be plead?
Yes.
What is ultimate decision making?
When 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.
Does ultimate decision making have to be plead?
Yes.
Can the court award ultimate decision making over all issues?
No, not without a showing of detriment because that is essentially sole parental responsibility.
What remedies are there when one parent refuses to honor the timesharing schedule without proper cause?
o Shall order make-up timesharing in a manner consistent with the best interests of the child and scheduled in a manner that is convenient for the parent deprived of time;
o May order the parent to pay reasonable attorney’s fees and costs incurred to enforce timesharing;
o May order the parent to attend a parenting course;
o May order the parent to do community service
o May order the parent who did not provide timesharing or did not exercise timesharing to have the financial burden to promote frequent and continuing contact when they parent and child live more than 60 miles apart.
o May, upon request, modify the parenting plan if modification is in the best interests of the minor child
However, this must be requested by the filing of a supplemental petition and may not be modified at a contempt hearing
o May impose any other reasonable sanction.
Can the court make a prospective based determination about parenting issues?
No, however, if an event is reasonably and objectively certain to occur at a identifiable time in the future, the court may do so.
If timesharing is restricted, does the court have to give the parent steps to regain timesharing?
No.
What are the relocation factors?
ELEVEN
* The nature, quality, extent of involvement, and duration of the child’s relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life;
* The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child;
* The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and timesharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocation parent or other person once he or she is out of the jurisdiction of the court;
* The child’s preference, taking into consideration the age and maturity of the child;
* Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities;
* The reasons each parent or other person is seeking or opposing the relocation;
* The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking the relocation of the child;
* That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support and marital property and marital debt obligations;
* The career and other opportunities available to the objecting parent or other person if the relocation occurs;
* A history of substance abuse or domestic violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation;
* Any other factor affecting the best interests of the child or as set forth in 61.13.
What is the definition of Repeat Violence.
Two incidents of violence or stalking committed by the Respondent, one of which must have been within 6 months of the filing of the Petition, which are directed against the Petitioner or the petitioner’s immediate family member.
What is the definition of Violence?
Any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping or false imprisonment, or any criminal offense resulting in physical injury or death by a person against any other person.
What is the definition of Domestic Violence.
Any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.
What is the definition of Sexual Violence?
Any one incident of: (1) sexual battery; (2) a lewd or lascivious act committed upon or in the presence of a person younger than 16; (3) luring or enticing a child; (4) sexual performance by a child; (5) any other forcible felony wherein a sexual act is committed or attempted……regardless of whether criminal charges based on the incident were filed, reduced or dismissed by the State Attorney.
When is there a cause of action for an injunction for protection against domestic violence?
If a family or household member is a victim of domestic violence or has reasonable cause to believe they are in imminent danger of becoming a victim of domestic violence.
Reasonable cause to believe one is in imminent danger of becoming a victim of domestic violence is based on an objective standard.
When is there a cause of action for stalking?
When a person willfully, maliciously and repeatedly follows, harasses or cyberstalks another person.
What is considered family or household member?
WHO HAS STANDING?
1. Spouse
2. Former spouse
3. Blood relative or related by marriage
4. Lived in the same house as family now or before
5. Share a child in common.
What are the factors in determining objectively if reasonable cause to believe party in imminent danger of becoming a victim of domestic violence?
- History between the parties
- If Respondent threated Petitioner or Petitioner’s family
- If Respondent threatened to conceal, kidnap or harm Petitioner
- If Respondent threated use of a weapon
- If Respondent prevented Petitioner from calling police or leaving
- If Respondent injured or kill a pet
- If Respondent has criminal history of domestic violence
- If Respondent has any other domestic violence in other jurisdiction
- If Respondent destroyed personal property
Where can a domestic violence action be brought?
WHERE IS VENUE?
1. Where Petitioner lives
2. Where domestic violence occurred
3. where Respondent lives
Can Respondent in a DV case be served on a Sunday?
Yes, Respondent’s in DV cases can be served with temporary or final injunctions any day of the week.
When is a temporary DV injunction granted?
When there is an immediate and present danger alleged in the petition.
What happens if a temporary DV injunction is denied?
If it is denied because there is no immediate and present danger, then a hearing gets set. If it is denied because there is no legal grounds, the court must include the reason in the order denying.
What is the definition of harass?
To engage in a course of conduct directed at a specific person, which causes substantial emotional distress to that person and serves no legitimate purpose.
What is the definition of cyberstalk?
To engage in a course of conduct to communicate, or to cause to be communicated, directly or indirectly, words, images, or language by or through the use of electronic mail or electronic communication, directing at or pertaining to a specific person OR access, or attempt to access, the online accounts or Internet-connected home electronic systems of another pressrun without that person’s permission, causing substantial emotional distress to that person and serving no legitimate purpose.
Define course of conduct?
A pattern of conduct composed of a series of acts over a period of time, which evidences continuity of purpose. A minimum of two incidents are required to establish stalking.
What factors does the court consider if there was stalking?
Has Respondent previously stalked/abused
Has Respondent threatened Petitioner or family
Has Respondent intentionally injured or killed pet
Has Respondent threatened use of a weapon
Does Respondent have criminal history of violence or threat of violence
Does Respondent have any other DV’s
Has Respondent destroyed personal property.
Who has standing to file a petition for protection against stalking?
Anyone who is a victim of stalking.
What is the appropriate venue for stalking?
Where Petitioner lives
Where Respondent lives
Where action accrued
When is there a cause of action for Repeat Violence?
When Petitioner alleges 2 or more acts of violence or stalking with one of those acts occurring within 6 months, which are directed against the Petitioner or the Petitioner’s immediate family member.
What is the appropriate venue for repeat violence?
Where Respondent resides
Where the action accrued
When is there a cause of action for dating violence?
There is a cause of action for an injunction for protection against dating violence for any person who is the victim of dating violence and has reasoanble cause to believe he or she is in imminent danger of becoming the victim of another act of dating violence OR
any person who has reasonable cause to believe he or she is in imminent danger of becoming the victim of an act of dating violence, or the parent or legal guardian of any minor child who is living at home and who seeks an injunction for protection against dating violence on behalf of that minor child, has standing in the circuit court to file a sworn petition for an injunction for protection against dating violence
Define dating violence?
Dating violence is defined as violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature.
What factors does the court look at to determine if there exists a continuing and significant relationship of a romantic or intimate nature?
The existence of such a relationship shall be determined based on the consideration of the following factors: (STANDING)
* A dating relationship must have existed within the past 6 months;
* The nature of the relationship must have been characterized by the expectation of affection or sexual involvement between the parties; and
* The frequency and type of interaction of the relationship between the parties has been over time and on a continuous basis during the course of the relationship.
What is the appropriate venue for Dating Violence?
Where Respondent lives
where cause of action accrued
What is the appropriate venue for all 5 types of Injunctions?
DV- where P lives (even temporarily), where R lives, where DV occurred
Stalking - where P lives (even temporarily), where R lives, where stalking occurred
Sexual - where R lives, where violence occurred
Repeat- where R lives, where violence occurred
Dating- where R lives, where violence occurred
What is sexual violence?
When Petitioner alleges any ONE of the following:
sexual battery
lewd/lascivious action committed upon or in the presence of child under 16
luring or enticing child
sexual performance by child
any other forcible felony wherein sexual act is committed or attempted
What is the appropriate venue for Sexual Violence?
Where R lives or where violence occurred
Are recordings of proceedings required in all injunction for protection cases?
No. Only in DV and Stalking.
No recording is necessary for Repeat, Dating or Sexual violence.
What is a social investigation
A study conducted by a qualified expert concerning all pertinent details relating to the children and parents.
When can the court order a social investigation?
In any action where the parenting plan is at issue because the parents are unable to agree and a social investigation has not yet been done or the study has been done but is insufficient.
Does a social investigation report get filed with the court?
No, but it can be provided to the court and all parties.
is the report admissible?
Yes, the technical rules of evidence to not apply.
What rule governs psychological evaluations and what does the rule provide?
12.360: a parent involved in a custody dispute may be required to submit to a psychological evaluation if it is established that their mental condition is in controversy and good cause is shown for the examination.
When can the court appoint a GAL?
In an action for DOM or for the creation, approval or modification of a parenting plan, if the court finds it is in the best interests of the child, the court may appoint a GAL to act as next friend of the child, investigator and evaluator, but not an attorney or advocate for the child.
What is the role of a GAL?
To investigation and act upon the best interests of the child.
What powers, privileges and responsibilities does a GAL have?
o GAL shall have powers, privileges and responsibilities to the extent necessary to advance the best interests of the child, including, but not limited to:
Investigate allegations of the pleadings that affect child;
Interview child, witnesses or other persons having information;
Assist court in obtaining impartial expert examinations;
Address the court and make written or oral recommendations
GAL shall file written report at least 20 days prior to hearing;
GAL must be provided with copies of all pleadings, notices and other documents filed and is entitled to reasonable notice before any action affecting the child is taken;
Entitled to be present and participate in all depositions, hearing and other proceedings;
Non attorney GALS’ may not practice law
Shall submit recommendations to court within 10 days after the date of the stipulation or agreement is served on GAL:
* GAL, through counsel, may:
o Petition court for an order directed to a specific person or entity, allowing the GAL to inspect and copy records, only after notice and hearing;
o Request court to order expert examinations of the child or parents;
o May file pleadings, motions, or petitions for relief.
* Court cannot delegate decisions to the GAL.
What is parenting coordination?
A non-adversarial dispute resolution process ordered by the court or agreed upon by the parties.
Who may be a PC?
licensed mental health professional
licensed psychiatrist
FL Sup Ct Family Law mediator
member of FL bar
Is a GAL’s file discoverable?
No, it is confidential.
What statute and rules govern PCs?
61.125/12.742
PC confidentiality?
all communications made by, between or among the parties, participants and PC during PC sessions are confidential unless an exception applies.
When can the court award temporary custody by an extended family member?
Chapter 751 allows proceedings to be brought by any extended family member who has the signed, notarized consent of the child’s legal parents; or any extended family member who is caring full time for the child in the role of substitute parent and with whom the child is presently living.
Can the court require parents to send their children to private school?
Yes, if the court finds: the parent has the ability to pay, the expense is in accordance with the family’s established standard of living; it is in the child’s bets interests.
What is the definition of relocation?
change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying timesharing, or at the time of filing the pending action to establish or modify timesharing.
o Must be more than 50 miles from that residence
o For at least 60 consecutive days
o Not including temporary absence
Relocation by Agreement?
Written agreement of the parents (or other person entitled to access) must:
o Reflect consent to relocation
o Define an access or timesharing schedule for the nonrelocating parent; and
o Describe transportation arrangements, if necessary.
o Parties shall seek ratification of the agreement by the court;
o No evidentiary hearing necessary unless requesting in writing within 10 days of filing the written agreement with the court.
what must be included in a petition for relocation?
- Petition for Relocation: If there is no agreement, the parent seeking relocation must file a petition to relocate and serve it on the other parent and every person entitled to access to the child:
o Signed under oath and must include:
Description of the location of new residence, including state, city and address, if known;
Mailing address;
Home telephone number;
Date of intended move;
Detailed statement of the specific reasons. If one is written job offer, job offer must be attached.
A revised post-relocation schedule for access and timesharing and transportation arrangements
A statement in all capital letters in same or larger type of the rest of the petition: A RESPONSE TO THE PETITION OBJECTING TO RELOCATION MUST BE MADE IN WRITING, FILED WITH THE COURT, AND SERVED ON THE PARENT OR OTHER PERSON SEEKING TO RELOCATE WITHIN 20 DAYS AFTER SERVICE OF THIS PETITION TO RELOCATE. IF YOU FAIL TO TIMELY OBJECT TO THE RELOCATION, THE RELOCATION WILL BE ALLOWED, UNLESS IT IS NOT IN THE BEST INTERESTS OF THE CHILD, WITHOUT FURTHER NOTICE AND WITHOUT A HEARING.
What happens if the parent objecting to the relocation fails to file a response objecting to the relocation?
If the other parent fails to file a response objecting, the relocation is presumed to be in the best interests of the child and the relocation shall be allowed.
What must be included in an objection to relocation?
Objection must be verified and include the specific factual basis supporting the reasons for objecting, including a statement of the amount of participation or involving the objecting party currently has or has had in the life of the child
What are the consequences to relocating without complying with the statute?
Relocation without complying with the statute subjects the party to contempt and other proceedings to compel return of the child and may be considered by the court in an action seeking a determination or modification of parenting plan.
When can the court grant a temporary relocation?
Court may grant a temporary order permitting relocation pending the final hearing if the court finds:
* Petition to relocate was properly filed and in compliance with statute;
* Likelihood that at final hearing the court will approve the relocation;
* If temporary order is issued, the court may not give any weight to the temporary relocation as factor in reaching final decision;
* If temporary relocation is approved, court may require person relocating with child to provide reasonable security.
When should the court deny a temporary relocation?
Court may grant a temporary order restraining the relocation and order the return of the child, if the court finds:
* Petition to relocate does not comply with statute;
* Child has been relocated without written agreement or court approval;
* From an examination of the evidence, there is a likelihood that upon final hearing the court will not approve the relocation;
who and what is the burden of proof in a relocation case?
The burden of proof is on the parent wishing to relocate to prove, by a preponderance of the evidence, that the relocation is in the best interest of the child. If that burden is met, the burden shifts to the nonrelocating parent or other person to show by a preponderance of the evidence that the proposed relocation is not in the best interests of the child.
are relocation given statutory priority?
Priority:
* Hearing on Motion for Temporary Relocation must occur within 30 days after motion is filed, absent good cause.
* If a notice to set the matter for trial is filed, absent good cause, the trial must occur no later than 90 days later.
Define concurrent custody.
Concurrent Custody: extended family member is awarded custodial rights to care for a child concurrently with the child’s parent or parents.
Define extended family member for purposes of Chapter 751 cases.
Extended Family Member: a relative of minor child within the 3rd degree by blood or marriage to the parent; stepparent if currently married to parent and no pending litigation involving both parents; fictive kin.
who has standing to request an order for temporary or concurrent custody by extended family?
- Any extended family member who has the signed, notarized consent of the child’s legal parents; or
- Any extended family member who is caring full time for a child in the role of substitute parent and with whom the child is living;
Anyone seeking concurrent custody must also:
Must have physical custody of the child or have had physical custody of the child for at least 10 days in any 30 day period within the last 12 months;
Not have signed, written documentation from a parent which is sufficient to enable the custodian to do all the things necessary to care of the child.
What must be included in a petition for temporary or concurrent custody by extended family member.
Petition must:
* be verified by petitioner and must contain statements to the best of petitioner’s knowledge:
o name, DOB, address of child
o name and current addresses of parents
o names and current addresses of persons who the child lived with during the last 5 years
o places where child lived during the last 5 years
o information concerning any custody proceedings
o residence and post office address of petitioner
o petitioner’s relationship to child
o if concurrent custody:
time periods during the last 12 months child resided with petitioner
type of document provided by parent to enable petitioner to act on behalf of child
services or actions petitioner is unable to obtain without order of custody
whether each parent has consented to order of concurrent custody
copy of written consent and any documents provided by parent to assist petitioner in obtaining services must be attached
o if temporary custody:
consent of parents or specific acts or omissions which demonstrate that parents have abused, abandoned or neglected child
any temporary or permanent orders for child support and case number
any temporary or permanent order for protection and case number
that it would be in child’s best interests
period of time requesting and reasons
any other provisions related to BIC
What are the ROSEN FACTORS.
o ROSEN FACTORS: (BDSMRP)
Scope and history of litigation
Duration of the litigation
Merits of respective positions
Brought or maintained to harass
Raised defense to stall
Prior or pending litigation
What is gross income?
o Salary/Wages
o Bonuses/Commissions/Allowances/Overtime/Tips
If bonus is not regular and recurring, it is error to include it
o Business Income (gross receipts minus ordinary and necessary expenses)
o Disability benefits
o Workers’ compensation benefits/settlement
o Reemployment assistance/unemployment
o Pension/retirement/annuity payments
o Social security benefits
Social security benefits received by a minor child due to the retirement or disability of the child’s parent shall be included in the parent’s gross income.
* Social security benefits received by a parent for a child’s disability are not included in the parent’s income.
* Social security benefits received for a child as a result of a parent’s disability (derivative benefits), should be included as income to that parent, but then credited against the disabled parent’s support obligation.
o Spousal support from previous or current marriage
o Interest/dividends
Stock options/RSU cannot be treated as both income and assets
o Rental income (gross receipts minus ordinary and necessary expenses)
Should include negative rental income, not just positive
o Royalties/Trusts/Estates
If a parent elects not to take all income to which he/she is entitled under a trust, that election does not affect the determination of income, as the entire amount he/she was entitled to receive will still be included as income for purposes of calculated child support. Oxley v. Oxley
o Reimbursed/in-kind payments that reduce living expenses
o Gains
Must be recurring. Cannot include one time gain.
What are allowable deductions?
- Allowable Deductions
o Federal/State/Local income tax
o FICA/self-employment tax
o Mandatory union dues
o Mandatory retirement payments
o Health insurance, excluding amount for minor child
o Court-ordered support for other children actually paid
o Spousal support from prior or current marriage
What is the burden to impute income?
o The party seeking to impute income has the burden to present competent, substantial, evidence that:
The unemployment or underemployment is voluntary; and
Identifies the amount and source of the imputed income, through evidence of income from available employment for which the party is suitably qualified by education, experience, current licensure, or geographic location, with due consideration being given to the parties’ timesharing schedule and their historical exercise of the timesharing provided in the parenting plan.
What are the child support deviation factors?
- The court may adjust the total minimum child support award, or either or both parents’ share of the total minimum child support award based on the following deviation factors:
o Extraordinary medical, psychological, educational or dental expenses.
A parent cannot be required to contribute to minor child’s private school education expenses unless the trial court makes three factual findings: - The parties have the ability to pay such expense
- The expense is in accordance with the customary standard of living of the parties; and
- Attendance at private school is in the BIC
- **The 3rd has also said that the court must find that the child has a special need that cannot be met in public school
o Independent income of the child, not included SSI
SSI is not a basis to reduce C.S. However, SSDI can be credited against C.S. obligation.
o Payment of support for a parent which has been regularly paid and for which there is a demonstrated need
o Seasonal variations in one or both parents’ income/expenses
o Age of child taking into account greater needs of older children
o Special needs of the child
o Total available assets of the obligee, obligor and child.
o Impact of IRS child related tax credits
o When the guidelines require a person to pay another person more than 55% of his or her gross income
o The particular parenting plan
o Any other adjustment
Daubert?
-challenging party must raise Daubert objection as soon as reasonably aware and request a hearing
- an untimely Daubert challenge should not be considered absent exceptional circumstances
- A proper objection must: (1) identify the source, substance and methodology of the challenged testimony; and (2) be supported by conflicting expert testimony and literature
- Burden is on proponent of testimony, by preponderance of evidence
- permits the admission of novel, scientific evidence, if reliable
- exclusion is the exception, rather than the rule
- court will look at expert’s qualifications, relevance and helpfulness, cannot be “because i said so”, must use reliable methodology
- focus is on methodology rather than conclusions
When are appeals of non-final orders permitted?
Orders concerning:
- venue
-injunctions
- personal jurisdiction
- family matters concerning immediate monetary relief, child custody/timesharing, marital agreement valid
- forum non convenient
- motions to disqualify counsel
Do motions for rehearing toll time to file appeal?
If it is a final order, yes.
If it is a non-final order, no.
What is required if the parties agree NOT to file FA’s, but only exchange them?
12.285(c)(2)
File a Joint Verified Waiver of Filing FA’s acknowledging:
- evidence of their current or past financial circumstances may be necessary for future court proceedings
- each party gave the other a fully executed and sworn FA
- it is the responsibility of the parties to retain the FA’s
- Waiver only applies to current filing
- waiver may be revoked at any time
How does the court obtain jurisdiction to divide a miliary pension?
The Uniform Services Former Spouse Protection Act (USFSPA) provides that the court can obtain jurisdiction to divide a military pension over the military member by:
- his/her residence, other than because of military assignment, in the territorial jurisdiction of the court, during the proceeding
-his/her domicile in the territorial jurisdiction of the court during the proceeding; or
- his/her consent
What does USFSPA provide?
- allows state courts to treat disposable military retired pay as marital
- authorizes former spouses in some cases to receive their share of military retired pay directly from military (10 year overlap of marriage and service)
- authorizes former spouses who meet certain criteria to continue to receive military benefits;
- allows former spouses to be designated as Survivor Benefit Plan beneficiaries
What doesn’t USFSPA provide?
USFSPA does not
- require a court to divide military retired pay
- allow a state to divide anything other than disposable retired pay
- allow court to order direct payments to former spouse if requirements aren’t met
- allow court to award or deny military benefits to former spouse
- allow a court to required a specific beneficiary for life insurance
What is miltary “disposable retired pay” ?
Gross retired pay less authorized deductions including
- amounts owed to government
- amounts waived to get VA money
- medical retirement
- SBP premiums for the spouse receiving division
What military benefits are not considered an asset for purposes of equitable distribution?
- VA disability pay
- medical retirement
- retired pay earned due to increase in rank after valuation date
- retired pay earned for a time in service after valuation date
What does the Servicemembers Civil Relief Act of 2003 provide?
- entitlement to delay and counsel in a family law case
- applies to members serving on active duty and National Guard or reserve members activated for more than 30 days
- FJ must include statement about SCRA in order for DFAS to honor and administer retired pay provision in FJ
How does FL obtain SMJ to dissolve marriage absent residency of a member of military?
Fla. Stat. 47.081 provides that if member is in FL on military orders, even if not a resident, member and spouse will be considered a resident for the purpose of maintaining any action. While physical or actual presence is not required, there must still be concurrent intent to be a permanent Florida resident.
What does the Uniform Deployed Parent Custody and Visitation Act provide generally?
Allows a deployed parent (not the other parent or 3rd party) to request the Court grant caretaking authority over their child while deployed to a family member or non family member that has a close and substantial relationship to the child. It is based on a best interest standard and if it is a non-family member, BIVC must be proven by clear and convincing evidence.
When can the court grant temporary caretaking authority to a family member or non family member with a close and substantial relationship to the child?
- deploying parent files motion
- in best interests of child
- can be granted to a non-parent who is an adult family member or a non-family member who has a close and substantial relationship with the child. If non-family member, must prove BIC by clear and convincing evidence
- unless agreed by the other parent, the grant is limited to the amount of time that the deployed parent has under a custody order, if no order than the time the deploying parent habitually cared for the child prior to deployment
When can the court grant temporary decision making to a non party when parent is deployed?
- if a deployed parent is unable to exercise decision making and it is in the BIC, court may grant part of that authority to a non-parent family member or non-family member who has a close and substantial relationship with the child (in which case BIC is determined based on CCE)
- must be narrowly drawn to the reasonably for forseeable needs of the child during the time the deploying parent is not able to make decisions and must consider the role of the other parent
- court shall specify the powers granted and duration of such grant, which shall not exceed length of time deploying parent is unable to exercise decision making
Can parties agree to a Temporary Custodial Responsibility/Caretaking?
Yes, if the parties agree, the agreement must be in writing and signed by BOTH parents and the family member or non family member; Agreement must include
- destination, duration and conditions of deployment
- specific the allocation of caretaking
- specify decision making
- process to resolve disputes
provisions for communication and contact with child and deploying parent
- acknowledgment that it doesn’t modify child support
- provide when agreement terminates
- specify which parent is required to file the agreement
What must be included in an Order Granting Temporary Caretaking Authority?
- must be designated as temporary and provide for termination when deployed parent returns
- identify destination, duration and conditions of deployment
- specify allocation of caretaking and decision making
- provide process to resolve disputes
- liberal communication between deployed parent and child unless not in BIC
- liberal contact between deploying parent and child while parent on leave or otherwise available unless not in BIC
- reasonable contact between deploying parent and child after return from deployment but before order is terminated
Definition of dependent adult child?
unmarried adult who is incapable of self-support as a result of a physical or mental incapacity that began before that person turned 18
What is appropriate venue to file a petition for support of adult dependent child?
Where DAC resides.
Who can file petition for support of DAC?
- DAC or agent under POA
- A parent or other person on behalf of DAC
- DAC’s guardian advocate or guardian
When can Petition for Support of DAC be filed?
Anytime after the child turns 17.5
Who is the child support for a DAC paid to?
-DAC or agent under POA
- court appointed guardian
- guardian advocate
- special needs trust or pooled trust
How is the amount of child support for a DAC determined?
CSG do not apply. Rather, the amount is based on the needs of the DAC and the ability of parents to pay, allowing flexibility to preserve government benefits DAC may be entitled. It is based on the following factors
- DACs income/assets
- Existing or future needs of DAC related to physical or mental incapacity and the care and personal supervision directly required by or related to that incapacity
- whether a parent or other person pays for or will pay for the care of supervision of the DAC
Financial recourses of parents
Any other financial resources available
