Fl Family Flashcards
Adoption
An adult that
1) Lives in Florida
2) that has good moral character
3) and has the ability to nurture and provide for a child may adopt.
Court looks to the BIC in deciding a petition for adoption
Consent - take back period
If a child is less than 6 months old when parents give up child there is a 3 day revocation period
Children are Eligible for Adoption if
1) Consent
2) Dead Parents
3) Virtual Desertion
4) Involuntary Termination of Parental Rights- Abuse Abandonment or Neglect
Finalization of Adoption
Requires:
A) court hearing to finalize
B) Adoptive parents and child being adopted be in attendance
Adoption tax credit
Adoptor becomes eligible for an adoption tax credit, which will reduce her income tax by the amount of her adoption costs
Termination of parental rights requirements for fathers
Termination of parental rights requires
1) the petitioner to submit an application for diligent search of the putative father registry.
2) Actual Noticemust be served on potential birth fathers
Grandparents Priority
Grandparents have statuatory priority to adopt the child, if parents have died or their parental rights have been terminated
Age of Consent for Adoption
Children over 12 must give their consent to be adopted
Parental Rights With Adoption After Divorce
When a couple divorces if a parent does not adopt a non-marital child no parenting plan is required
Child’s Interest of Biological Father
Interest of the state, mother, child and adoptive parent outweight biological father who doesn’t deomonstrate a relationship with the child
Kinship Adoption
grandparents or close relative aopts child, no home study is needed & State expedites the adoption process
Alimony and Modification
Based on one spouses need **for financial assistance **and the other’s ability to pay
to modify a party must show a **substantial/material/permanant/involuntary change in circumstance **in the
a) party’s need or ability to pay - involuntary and not forseen at time of final judgement
or
b) supportive relationship
Alimony Types
Temporary
granted on a temporary basis during pendancy of divorce litigation (not waivable)
Alimony Types
Bridge-the-gap
to assist with legitimate short-term neds while making transition to single life
- Can’t exceed 2 years
- termination upon death or remarriage
Not Modifiable
Alimony Types
Rehabilitative
granted to assist party establish a capacity to self-support
- Requires a rehabilitative plan in court order
- usually be educational or for job training
- no more than 5 years
Alimony types
Durational
granted to assist party economically for a set period of time
- Short term - can’t be for more than 50% of the marriage
- Mid term - can’t be for more than 60% of the marriage
- long term - can’t be for more than 75% of the marriage
- permanant alimony is abolished - court can extend durational alimony under exceptional circumstances with clear and convincing evidence
Annulment
brought to declare the legal invalidity of a marriage from its inception. Signifies no valid marriage existed from start
Grounds: lack of legal, mental, or physical capacity, lack of age or via force consent, duress fraud or concealment
Voidable Marriages
Age
duress
intoxication
Fraud
Void Marriage
Incest
Bigamy
offends public policy
Best Interest of the Child
all custody and visitation decisions are made with the ultimate goal of fostering and encouraging the child’s happiness, security, mental health, and emotional development into young adulthood
Florida Presumes shared responsibility is in the BIC
Custody and Parent Plan
BIC Factors
- Child’s Preference
- Parent’s ability to share child
- length of time in a good stable enviornment
- ability of each parent
- history of abuse
GASPA
Parenting Plan
required to be filed with the court in any divorce that includes minor children of the marriage.
if child brought in and not adopted by other parent, no plan is required
Time Sharing and Parental Responsibilities
must be and contain
must be
1) approved by the court
2) and describe in adequate detail how the parents will share time and decision making
Time Sharing
a part of the parenting plan which specifies the time the child will spend with each parent
- equal time shareing presumption based on BIC
- parents cannot refuse to honor agreement because one parent does not want to pay child support
- courts consider time sharing based on the parents demonstrated disposition to encourage a close and continuing parent-child relationship, to honor the schedule and be reasonable when changes are required
UCCJEA - Home State Rule
Home State - Florida Jurisdiction Applies
Fl Circuit Court will have jurisdicition if
1) Home State- lived in florida for life/ past 6 months or
2) was the child’s home state w/in past 6 months, child leaves but parent live in the state
Exception
if HSR does not apply another court will have ability to modify child custody/visitation order if
1) no home state
2) child and at least one parent have a significant connection to the state, AND
3) substantial evidence in the state exists concerning childs care, protection, education, and personal relationship.
Child Support
Cannot be waived
Federal law requires States to set guidelines that:
1) take into account all earnings and income of the non-custodial parent; AND
2) are based on specific descriptive and numeric criteria.
Florida Child Support
Income Shares model - child support is based on the share of income from each parent during the marriage; insurance and childcare costs are divided according to % of net income
Parents are obligated to pay CS until their child is 18 years old/graduates highschool if still in when 18, marries, joins the military, or is emancipated.
Support will continue if they are mentally of physically dependent
Can be held in contempt if CS/alimony isn’t paid
No SOL for collecting child support arrears
Child Support Modification
1) Substantial change in circumstance & BIC -
- need vs. ability to pay
- child’s needs
- change in time sharing plan over 40% to make it substantially shared parenting
or
- change must be permanant, significant, material and involuntary
or
2) child turns 18
Judge must write findings if change deviates more than 5%
Retroactive CS Modification
apply retroactive child support to date spouse sort court ordered modification
- payments do not need to be current to seek modification
Counseling
the court can order counseling for up to 3 months when there is a minor child involved in order for the parties to attempt reconciliation
Attorney Fees
not contingency
Award can be based on the resources of the parties at the time of divorce - can be designated in the divorce agreement who pays what
Divorce
Type of Divorce State
No fault divorce state
- marriage is irretrievably broken down
or
- adjudicated mental incapacity for more than 3 years
marital misconduct - may affect equitable distribution and Parenting rights and Atty fees
Divorce Requirement
1) Jurisdiction - court must have SMJ (residency requirement - 1 spouse is a resident for more than 6 months) and PJover the non-filing spouse if they don’t reside in FL to determine issues of property and support (alimony and CS)
2) pleading contains statement that the marriage is irretrievably broken.
Equitable distrubtion
marital assets are divided based on equity not equally - at the courts discretion
Non-marital property
1) Property acquired before marriage;
2) Gifts and bequests (even if during marriage); property acquired not during the marriage and held seperatly or by gift
3) Property that spouses agreed will be separate property; and
4) Passive appreciation of separate property – an increase in value due to a passage of time
Marital Property
ALL OTHER property acquired during the marriage, including: (1) active appreciation – caused by the effort of a spouse; and (2) future expectancies, even if payment will not be received until after the marriage ends.
Effect on Divorce re Homestead
Uppon dissolution, if one spouse maintains the marital homestead as their residence, the homestead exemption continues for that property
Paternity Legitamacy
Established By:
1. Birth Certificate
2. married at time of conception -(presumption)
3. unmarried parents express acknowledgment
4. unmarried biological father successful challenge of presumption
5. paternity suit
6. Estoppel - financial support and belief
Disestablishment
After paternity is established through marriage a father can disestablish paternity if:
1) discovery via science
2) child is a minor
Postnupual Agreement
after marriage is entered into, valid if there is full and fair disclosure
- Alimony can be waived for consideration
- if no express waiver, the right to receive alimony survives
- temporary alimony, child support, or child custody cannot be waived
Prenuptual Agreement
1) In writing
2) signed by both parties
3) voluntary (no fraud, duress, coersion, or undue influence)
4) good faith
- no consideration is required
- valid on day of marriage
Valid if there is full and fair disclosure, seperate counsel, or a fair and reasonable provision where the accepting party knows the maker’s general idea of wealth and what they are giving up
Property Settlement
if an agreement considered as a whole, plainly shows the parties intended it to be a final settlement of obligations concerning property of any kind
Exception: requires
1) Unconscionable at execution (procedural and substantive)
and
a. no full and fair disclosure of property and financial obligation of other party
b. did not expressly and voluntarily waive in writing any right to disclosure of such property/finances; and
c. did not have knowledge of the property or financial obligaiton of the other party
Child Relocation to Another State <50 miles
must be
1. in good faith
2. in the BIC
court balances the effect on visitation vs. benefit of relocation
- if by consent in written agreement must contain:
1. description of consent
2. new time sharing agreement
3. any necessary transportation agreement
if no agreement:
- main concern is how it will affect the relationship of child with non-relocating parent — BIC
Child Relocation >50 miles from principle residence at time of last custody order
requires either
1. court consent **or **
2. signed written agreement between the parents or
3. relocating parent must file a petion for relocation
Petition Contains:
1. Description of location moving to
2. date of move
3. reason
4. proposal for relocation time sharing schedule
Courts Analysis:
- Notice of intent to relocate provided to anyone with time shareing entitlement
- other parent objects to notice w/in 30 days
- Burden of proof to relocate is BIC
- Factors: child’s age; feasability, child preferance; quality of life
Safe Haven Statute
Abandoned newborn children are “Surrendered” children when dropped off at a state recognized repository for children
- no criminal charge
- less than 7 days old
Presumption: child is abandoned and parental rights are forfeited
reclaimed rights up until court enters judgement terminating rights
Supportive relationship
In FL, a supportive relationship requires that
1. the parties live under the same roof and either
2.hold themselves out as a couple,
3.or have a joint account
4. or own property together.
Spouse paying alimony can request it be reduced if there is a supportive relationship.
