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Florida Portion of Bar (Part A) (Me) > Florida Family Law > Flashcards

Florida Family Law Flashcards

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1
Q

Two Important Phrases in Family Law:

Whenever you are confronted by a family law question that deals with children, be sure to mention:

With division of property or alimony, remember the word:

A

“in the best interest of the child”

“equitable”

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2
Q

Florida Marriage Rights:

Definition of Marriage

A

“civil contract between a man and a woman”

  • Requirements:
    • Consent
    • Exchange of consideration via mutual promises
    • Acceptance or imposition of rights & obligations associated with marriage
  • Termination: cannot occur unless there is state intervention
  • Same‐Sex Marriages: Not recognized; banned in 2008; civil unions and domestic partnerships not recognized; DOMA (Defense of Marriage Act): Allows Florida NOT to give FFC (full faith and credit) to same‐sex marriages from other states
  • Fundamental right, but states can regulate
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3
Q

Florida Marriage Rights:

Definition of Marriage:

Ceremonial Marriage

A

Ceremonial Marriage:

  1. Solemnization (ceremony); and
  2. License
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4
Q

Florida Marriage Rights:

Definition of Marriage:

Solemnization

A

to hold or perform a marriage ceremony

  • judge, political official, or member of clergy can solemnize a marriage
  • Proxy marriages are not valid in Florida
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5
Q

Florida Marriage Rights:

Definition of Marriage:

License Requirements:

Age

A
  • Must be at least 18
  • 16 - 17: written consent; consent not needed if previously married; both parties are parents to a child in common; or female is pregnant
  • Under 16: requires court approval; Court has limited discretion; Can only approve marriage when a child under 16 years old is pregnant
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6
Q

Florida Marriage Rights:

Definition of Marriage:

License Requirements:

Waiting Period

A

3 day waiting period between the application date and effective date of the license

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7
Q

Florida Marriage Rights:

Definition of Marriage:

License Requirements:

Handbook and Course

A

All parties must verify reception and reading of a handbook issued by the Florida State Bar on marriage.

  • Parties can take a course on marriage.
    • Allows waiver of waiting period
    • Reduces fee
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8
Q

Florida Marriage Rights:

Definition of Marriage:

License Requirements:

A
  1. Age
  2. 3-day waiting period
  3. Handbook and Course
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9
Q

INTRODUCTION AND GETTING MARRIED:

Common‐Law Marriage:

A

Florida doesn’t permit C-L marriages. Unless before 1968. Does, however, recognize C-L marriages from other states pursuant FFC.

  • Requirements:
    1. Mental Capacity
    2. Hold Themselves Out as Being Married: parties must present themselves–in present-tense–as C-L married. Cannot say, “We are planning to get married in the future”
      • If no p-t verbiage: courts will look at: 1) Cohabitation; & 2) Rep in community
      • Cohabitation alone is NOT enough to prove a C-L marriage.
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10
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

A valid marriage can end in 3 ways:

A
  1. ANNULMENT;
  2. DEATH; &
  3. DIVORCE
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11
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Annulment

A

VOIDS a marriage (as if it never happened)

  • Impediment forming basis of annulment must exist at time of marriage
  • Florida rule: child of an annulled marriage is not considered to be a child of that marriage.
  • Does not require judicial dissolution
  • ANY party may seek annulment of a void marriage: Husband, wife, parent, guardian
  • 2 Bases for a Void Marriage: 1) Prior Existing Marriage 2) Mental Incapacity
    • Person getting married must be lucid.
    • Must be able to understand duties & responsibilities of marriage
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12
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Annulment:

Voidable Marriage

A
  • Requires judicial decree
  • only one spouse can seek an annulment
  • Spouse dies before marriage annulled: cannot be invalidated.
  • 6 Grounds for Voidable Marriage: 1) Incest; 2) Age; 3) Impotence; 4) Intoxication, Misrepresentation, Duress, Coercion, Force; 5) Fraud; 6) Lack of Intent
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13
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Annulment:

Voidable Marriage:

Incest

A

Sex or marriage within a degree of kinship

  • ALL STATES restrict “marriages by consanguinity.”
  • Florida also prohibits marriage of “half blood.”
  • Cannot marry your:
    • Parents
    • Children
    • Aunts & uncles
    • Nieces & nephews
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14
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Annulment:

Voidable Marriage:

Age

A

Underage party must have: Consent of parent OR court.

  • Otherwise, the marriage is voidable.
  • Overage party: CANNOT seek an annulment.
  • Underage party CANNOT seek annulment once:
    1. Reaches age of majority and
    2. Continues to cohabitat
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15
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Annulment:

Voidable Marriage:

Impotence

A
  • If one party is “NATURALLY and INCURABLY” impotent, marriage is voidable.
  • EXCEPTION: Other party knew before marriage about the impotence.
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16
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Annulment:

Voidable Marriage:

Intoxication

A
  • If either party was incapable of contracting due to ALCOHOL or DRUGS, then marriage may be annulled.
    • EXCEPTION: Parties cannot continue to live together afterward ‐ that’s ratification
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17
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Annulment:

Voidable Marriage:

Fraud, Misrepresentation, Duress, Coercion, Force

A
  • The fraud must be present, not a future fact.
  • Continuing relationship AFTER knowledge of fraud (or after misrepresentation or duress) is considered to be ratification.
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18
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Annulment:

Voidable Marriage:

Lack of Intent

A
  • Meant as a joke or done in jest
  • However, if the marriage was later consummated

then it CANNOT be annulled.

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19
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Distribution of Property (or Alimony) in Annulment

A
  • Florida law is unclear on property distribution after annulment.
  • Courts try to place the parties in the same position as they were prior to the annulled marriage.
  • Alimony is never available in an annulment.
    • Temporary alimony, “Pendente Lite,” is available.
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20
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Distribution of Property (or Alimony) in Annulment

A
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21
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Defenses to Annulment Action

A

No‐fault has curtailed defenses to dissolution.

  1. Recrimination (“Unclean Hands” Doctrine): both parties guilty of wrongdoing
  2. Condemnation: one spouse forgives another
  3. Laches: failure to seek annulment in a timely manner
  4. Ratification: conduct after defect is discovered
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22
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Divorce

A

a legal dissolution of a marriage

Grounds for Divorce:

  1. Incapacity
  2. No Fault
  3. Irretrievably Broken: Requires: 1) Testimony of a spouse; & 2) Court must make finding marriage is irretrievably broken.
    • Uncontested without Minor Children: Court will dissolve
    • Contested or minor children: If parties have minor children or one spouse denies that marriage is irretrievably broken, then court MAY:
      • Continue for 3 months to attempt reconciliation; Order counseling; OROrder other “best interest” actions.
      • OUTCOME: If court finds the marriage is irretrievably broken, it will grant the divorce.
    • Defenses to Claim of Irretrievably Broke: ONLY defense available in Florida is denial of the grounds
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23
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Simplified Dissolution Procedure

A
  1. County court
  2. Purpose is to do it without legal counsel
  3. Requirements:
    • No minor kids
    • Wife not pregnant
    • All assets are amicably divided
    • Must file
      • financial affidavit,
      • financial disclosures, and
      • draft a settlement agreement
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24
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Postnuptial

A
  • Made during the marriage – after marriage begins
  • Consideration is required–mutual exchange of promises will suffice
  • May determine property division & spousal support
  • Unlike pre‐nup, may affect child support and custody
    • May NEVER adversely affect the child’s interests – must be in the best interests of the child
  • NOT subject to Statute of Frauds; Unless land involved
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25
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Premarital Agreement (“Pre‐nup”)

A
  • Made before the marriage
  • Deals with what happens in the case of divorce or death; Relate to property division, alimony; and attorney’s fees
  • Subject to Statute of Frauds
  • Subject to Statute of Frauds adopted by Florida
  • Pre‐nups cannot determine child support or custody
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26
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Separation Agreement

A
  • For couples planning to divorce
  • Often drafted during pendency of dissolution action
  • Subject matter often includes: Property division; spousal support; custody; visitation; child support & visitation
  • Often merged into the final judgment
  • Court will accept if based on full and fair disclosure
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27
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Property Settlement Agreement

A
  • done before divorce decree
  • Settles the economic issues
  • Must be intended to be final
  • Deals with both real and personal property
  • May not be modified
  • NOTE: If parties reconcile or remarry each other,

executed provisions are unaffected.

* ***Unexecuted provisions*** are abrogated.
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28
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Validity of Marital Agreements:

5 Elements

A

The agreement must be:

  1. In writing
  2. signed
  3. fair & reasonable
  4. voluntary &
  5. based on full disclosure
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29
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Validity of Marital Agreements:

Full Disclosure

A
  • Pre‐nup must be based on full disclosure.
  • Parties must exercise meaningful choice or else court won’t enforce agreement.
  • Court won’t enforce if unconscionable or if one party was NOT given fair and reasonable disclosure.
  • If a party did not waive their rights to disclosure and could not obtain adequate

knowledge of the finances or property of the other party, the court will declare the agreement invalid.

  • Note: If agreement initiated AFTER completion of discovery & if all relevant info could have been obtained, then party cannot challenge agreement.
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30
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Validity of Marital Agreements:

Fair and Reasonable

A
  • Current trend: even if the outcome seems unfair to one of the parties, if disclosure was fair, the court will enforce the agreement.
  • Factors to consider: age, health, wealth, etc.
  • Bases for “unfair” or “unreasonable” are:
    • Fraud
    • Duress
    • Undue Influence
    • Media Misconduct (bias toward a party)
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31
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Validity of Marital Agreements:

Voluntary

A
  • Must be free from duress
  • Factors considered:
    • Time pressure
    • Opportunity to consult atty
    • Prior business experience
  • Voluntariness requires:
    • Being informed of right to counsel; and
    • Being given the opportunity to consult with counsel.
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32
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Validity of Marital Agreements:

Impoverished Spouse

A

If an agreement leaves a spouse impoverished, court MAY set it aside even if fair, reasonable, voluntary, and full disclosure.

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33
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Validity of Marital Agreements:

Modifying Marital Agreements

A
  • Parties may always AMEND, REVOKE, or TERMINATE marital agreements.
    • Must be done by a written agreement
  • Child support: A court may always modify child support provisions even if the parties have included a provision in the agreement that prohibits modification of child support.
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34
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Validity of Marital Agreements:

Probate Rights

A
  • Parties MAY include provisions regarding probate rights.
  • Parties may WAIVE rights previously conferred in a will.
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35
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Domestic Violence:

Abuse in the form of

A

Abuse can take the form of:

  • Assault
  • Battery
  • Sexual battery
  • Kidnapping
  • Stalking
  • False Imprisonment
  • Other acts that results in injury or death
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36
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Domestic Violence:

Protected Parties

A
  • Spouses – current or former
  • Faux spouses – live together as spouses but not legally married
  • Children
  • Anyone related by blood or marriage
  • People residing together as if family
  • People with child in common

Tip: Analyze if the movant has standing.

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37
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Domestic Violence:

Relief

A

injunction–primary or general

Requirements:

  1. An act has been committed OR a “reasonable belief” of act to be committed
  2. Under oath
  3. Personal service has to be provided on the defendant
  4. Must be a hearing
    * Violation of Injunction: Can seek civil contempt, criminal contempt, civil damages, or attorney’s fees
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38
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Domestic Violence:

Temporary Injunction:

A
  • Takes place immediately
  • Petitioner affidavit is all that is needed.
  • Only good for 15 days
    • To become permanent, need a hearing
  • Must be a reasonable belief of violence
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39
Q

ENDING A MARRIAGE, MARITAL AGREEMENTS, AND DOMESTIC VIOLENCE:

Marital Agreements:

Domestic Violence:

General Injunction:

A
  • Court holds a hearing.
  • Notice is served.
  • Relief can be for a fixed period of time or until further order.
  • Mutual injunctions are prohibited by statute.
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40
Q

DIVISION OF PROPERTY AND ATTORNEY’S FEES:

Division of Property

A

Florida is an equitable distribution state.

  • Court may divide property without consideration of alimony. Cash may be awarded in a lump sum or through installments.
  • Requires:
    • financial affadavits
    • tax returns –3 years
    • Pay stubs ‐ 3 months of current income
    • Loan applications
    • Financial statements for the past year

Parties have an ongoing duty to disclose.

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41
Q

DIVISION OF PROPERTY AND ATTORNEY’S FEES:

Marital Property

A

All property acquired during the marriage

  • Includes increases to non‐marital property that resulted from either a spouse’s efforts or an improvement due to marital funds
  • Gifts between spouses are marital property.
  • Pension, insurance, and other benefits – the accrual is marital property.
  • Court divides marital debts and liabilities equitably.
  • Titling is NOT determinative – it is immaterial.
    • Tip: Watch out for the following scenario on the exam. Ex: Husband owned a house prior to marriage. The house is NOT necessarily marital property. The increase in value will be considered marital property. However, if Husband titles the house in both names, then it is presumed to be marital property. Husband has the burden to show that it was not a gift.
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42
Q

DIVISION OF PROPERTY AND ATTORNEY’S FEES:

Exceptions to Marital Property

A
  • Property acquired before the marriage;
  • Property specifically excluded as marital property pursuant to a valid agreement;
  • Property acquired by gift (except between spouses); and
  • Property or income derived from non‐marital property during the marriage, unless income from the marriage was commingled with it.
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43
Q

DIVISION OF PROPERTY AND ATTORNEY’S FEES:

Factors in the Distribution of Marital Property

A
  • Length of marriage
  • Economic circumstances of each spouse
  • Contributions of each spouse during marriage
  • Homemaking & child rearing are considered contributions.
  • Contributions to education or career of other spouse
  • Interruptions to spouse’s career or education
  • Interest of one spouse to retain an asset (business)
  • Spousal contribution to production of income
  • Intentional destruction of an asset
  • Retaining marital residence for kids
  • Any other factors the court finds “necessary and just”
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44
Q

DIVISION OF PROPERTY AND ATTORNEY’S FEES:

Attorney’s Fees

A
  • Court may award attorney’s fees to either spouse.
  • Court will consider the funds of each spouse.
  • Factors considered:
    • Duration of litigation
    • Scope and history of the litigation
    • Prior litigation between parties
    • Harassment
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45
Q

DIVISION OF PROPERTY AND ATTORNEY’S FEES:

Specific Types of Marital Property:

Professional License or Degree?

Goodwill?

Expectancy?

A
  • Professional License or Degree:
    • Not distributable property
    • MAY affect alimony or distribution of marital assets
  • Expectancy:
    • Possible future interest (inheritance) ‐ Not distributable
  • Goodwill: property of an intangible nature, which includes the expectation of continued public patronage that exists separate & apart from reputation of a particular individual. Therefore, in Florida, for professional goodwill to be marital property, it must be a business asset having a value independent of the continued presence or reputation of any particular individual.
    • Considered marital property if developed during the marriage Intangible in nature
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46
Q

DIVISION OF PROPERTY AND ATTORNEY’S FEES:

Specific Types of Marital Property:

Retirement or Pension Benefits

A
  • Considered marital property and are subject to equitable distribution
  • Also includes military benefits
  • Only the present value
  • Tip: Watch the timing of the pension benefits. Often on the exam, it is going to be both marital property. Example 2: Marge and Homer get married. Homer had $100,000 in his retirement account before he married Marge. They are married for 10 years. By the time they file for divorce, there is $250,000 in the retirement account. The first $100,000 is non-marital property, exclusively for Homer. The $150,000 increase in the account will be considered marital property.
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47
Q

DIVISION OF PROPERTY AND ATTORNEY’S FEES:

Specific Types of Marital Property:

Personal Injury Claim Proceeds

A

Depends on the nature of award

  • Compensatory damages ‐ not marital property, not subject to distribution.
  • Consortium losses ‐ not distributable.
  • Lost wages ‐ ARE distributable.
  • Any part of lost wages that occurred AFTER the divorce is not distributable (separate).
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48
Q

FINANCIAL SUPPORT OF SPOUSES:

Spousal Support

A

alimony

  • Support in the form of income
  • Courts award alimony if one spouse cannot support their own needs with employment.
  • Can be awarded at anytie ‐ it can be awarded during and/or after the marriage
  • Can be awarded for any length of time
  • Cannot be discharged in bankruptcy
  • Alimony may be waived for consideration
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49
Q

FINANCIAL SUPPORT OF SPOUSES:

Spousal Support:

Factors

A
  1. Financial Resources: Court considers financial resources of payee (person who will receive alimony) and the payor. Assets and property, non‐marital assets, child support payments, and earning potential of the parties.
  2. Standard of Living: Court looks to the standard of living during the marriage.
  3. Time: To help the payee find a job or gain further education
  4. Length of Marriage:
    • Short Term ‐ 0-6 years (<7 years)
    • Moderate Term ‐ 7-16 years (< 17 years)
    • Long Term ‐ 17 years+
  5. Contributions to the Marriage: Particularly those that enhanced earning potential of other spouse; E.g., homemaking, child care
  6. Age and Health
  7. Marital Misconduct: Adultery can be considered in support determination. BUT, current trend – did the adultery reduce marital assets?
  8. Children: Future responsibilities each has to common minor children
  9. Sources of Income: ALL sources of income
  10. Taxes: Taxes and tax consequences
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50
Q

FINANCIAL SUPPORT OF SPOUSES:

Spousal Support:

Insurance

A

Court can protect future alimony payments by ordering the payor to get a life insurance policy.

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51
Q

FINANCIAL SUPPORT OF SPOUSES:

Spousal Support:

5 Types of Support

A

Tip: Be sure to i.d. factors considered when determining alimony.

  1. Bridge‐The‐Gap Alimony
  2. Rehabilitative Alimony
  3. Permanent Alimony
  4. Durational Alimony
  5. “Pendente Lite” (Temporary) Alimony
  6. Palimony (Marvin v. Marvin 1976)
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52
Q

FINANCIAL SUPPORT OF SPOUSES:

Spousal Support:

5 Types of Support:

Bridge‐The‐Gap Alimony

A
  • Awarded to help a party transition to being single
  • Must be legitimate and specific to short‐term needs
  • May NOT exceed 2 years
  • May NOT be modified
  • Terminates upon death of either party or the remarriage of the party receiving alimony
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53
Q

FINANCIAL SUPPORT OF SPOUSES:

Spousal Support:

5 Types of Support:

Rehabilitative Alimony

A
  • For a limited time
  • To help establish the spouse with new education, training, or employment
  • Purpose: improve earning capacity dependent spouse.
  • The plan must be specific and defined.
  • MAY be terminated or modified if: substantial change in circumstances
  • Remarriage does not necessarily terminate rehabilitative alimony – it is a factor to be considered.
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54
Q

FINANCIAL SUPPORT OF SPOUSES:

Spousal Support:

5 Types of Support:

Permanent Alimony

A
  • For remainder of dependent spouse’s life (some exceptions)
  • Purpose: provide for the needs and life necessities of the dependent spouse.
  • Likelihood of permanent alimony award:
    • Long‐term marriage – most likely to be awarded (more than 17 years)
    • Moderate‐Term (7‐16 years) – only if “appropriate” based on factors
    • Short‐term (<7yrs) – only if “exceptional circumstances” exist
  • Court must find no other forms of alimony are fair and reasonable.
  • Modification or termination: “substantial change in circumstances.”
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55
Q

FINANCIAL SUPPORT OF SPOUSES:

Spousal Support:

5 Types of Support:

Durational Alimony

A
  • Court orders economic assistance.
  • ONLY awarded if no other forms of alimony are suitable
  • Only for a short period of time
  • Usually only follows short‐term or moderate‐term marriage
    • Only applies in long‐term marriage if no other need for permanent support.
  • CANNOT be longer than the length of the marriage
  • Amount may be modified ‐ substantial change in circumstances.
  • Length can only be modified under exceptional circumstances.
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56
Q

FINANCIAL SUPPORT OF SPOUSES:

Spousal Support:

5 Types of Support:

“Pendente Lite” (Temporary) Alimony

A

Applies from time of separation to time of dissoultion

  • Purpose: put parties on “equal footing.”
  • May vacate, modify or set aside for good cause
  • Retroactive modifications may go back to:
    • Entry of temporary order; or
    • Petition filing date.
      • NOT back to time of separation
  • Temporary alimony CANNOT be contracted away.
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57
Q

FINANCIAL SUPPORT OF SPOUSES:

Spousal Support:

5 Types of Support:

Palimony (Marvin v. Marvin 1976)

A
  • Unmarried co‐habitants
  • Relationship was long and stable.
  • Florida does not recognize palimony.
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58
Q

FINANCIAL SUPPORT OF SPOUSES:

Spousal Support:

Modification of Support

A
  • Alimony may be modified even if permanent.
  • CANNOT be modified if the alimony was not originally ordered by the court or if the court did not reserve ruling on it
  • Movant has burden of showing “significant change” in circumstances.
  • Voluntary income reduction does not reduce the support obligation.
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59
Q

FINANCIAL SUPPORT OF SPOUSES:

Spousal Support:

Death

A
  • Support usually continues until death of a spouse.
  • Payor’s obligations usually NOT INCLUDED as obligation of estate, unless specified by the court.
60
Q

FINANCIAL SUPPORT OF SPOUSES:

Spousal Support:

Remarriage

A
  • If the receiver remarries, court may terminate support.
    • NOT automatic termination
  • If 2nd marriage is annulled, support obligation from 1st marriage/divorce is not revived.
61
Q

FINANCIAL SUPPORT OF SPOUSES:

Spousal Support:

Cohabitation

A
  • If receiver cohabits with a non‐family member, support MAY be modified or terminated.
    • NOT automatic termination or modification
  • Factors considered:
    • How long has recipient lived with other person?
    • Have they held themselves out as “married” and for how long?
    • Both jointly contribute to the property or real estate
    • Did they both support the children of the other?
    • How much do they support each other – financially or services?
  • Cohabitation does NOT terminate temporary support.
62
Q

FINANCIAL SUPPORT OF SPOUSES:

Spousal Support:

Voluntary Retirement

A

Florida courts will consider this as factor when determining “substantial change” in circumstances.

63
Q

FINANCIAL SUPPORT OF SPOUSES:

Jurisdiction:

Durational Residency Requirements

A
  • 1 spouse must have 6 months of residency in Florida.
  • Spouse does not need to be physically present in Florida for that period.
  • Court looks to intent
  • Shown by driver’s license, voter registration card, and/or testimony of a 3rd party
64
Q

FINANCIAL SUPPORT OF SPOUSES:

Jurisdiction:

Divisible and Ex Parte Divorces

A
  • Under doctrine of divisible divorce, if court has subject matter jurisdiction and personal jurisdiction over one party:
    • Court can grant divorce.
    • Court cannot rule on property, alimony, child support, etc.
  • Court needs personal jurisdiction over both parties to rule on those matters.
65
Q

FINANCIAL SUPPORT OF SPOUSES:

Jurisdiction:

Indigent Parties

A
  • Florida does NOT require indigent to pay fees and costs in order to access the court system.
    • NOT entitled to right of counsel in divorce proceedings, court has discretion to award atty’s fees & costs if party is unable to afford services of legal counsel
    • Court must advise parents of their right to counsel at shelter hearing & at all dependency hearings, & of rights of parents to court-appointed counsel if indigent.
    • Court must determine whether parents understand their right to counsel, and must appoint counsel for an indigent parent unless the parent waives the right to counsel.
66
Q

FINANCIAL SUPPORT OF SPOUSES:

Jurisdiction:

Full Faith and Credit

A

Florida gives FF&C to a divorce from another state that affects Florida property so long as the other state’s actions will be considered valid in Florida.

67
Q

FINANCIAL SUPPORT OF SPOUSES:

Tax Consequences

A
  • Taxes During the Marriage: Married couples are jointly and severally liable for tax obligations unless innocence is shown in fraud or wrongdoing.
  • Tax Consequences of Equitable Distribution:
    • Equitable distributions are not taxed as regular income.
    • Property transferred is tax‐free.
  • Tax Consequences of Alimony: Alimony is taxable income to the recipient and tax deductible to the payor.
68
Q

PATERNITY AND CHILDREN:

Paternity

A
  • Action to prove paternity may be brought by: (expecting) mother; child; & believing father
  • If paternity ordered/affirmed, costs may be awarded for: Birthing costs; Hospital costs; Medical expenses; Attorney’s fees; Child support; Custody; & Time sharing
  • If a father fails to file for paternity under Florida Putative Father Registry, he may be estopped from rebutting a petition for termination of parental rights.
    • Ex: Homer doesn’t file for paternity under Putative Father Registry and Marge brings petition to terminate his parenting rights. Homer cannot rebut that petition.
69
Q

PATERNITY AND CHILDREN:

Genetic Testing

A
  • Most common way to determine paternity
  • Court may order genetic testing of child, mother, and possible dads.
  • If indigent, state MUST pay for defendant’s test.
  • Results must be filed with court within 10 days.
  • 95% or greater means “presumptive paternity”
  • If test says “NOT father,” dismissed with prejudice.
70
Q

PATERNITY AND CHILDREN:

Time Limit

A
  • NO time limit on filing of paternity petition
  • EXCEPTION: Time limit is “substantially related to government’s interest.”
71
Q

PATERNITY AND CHILDREN:

Marital Presumption

A
  • Married woman has child ‐ husband is presumed the father.
  • Marriage annulled ‐ child NO LONGER of marriage in Florida.
  • Child born within 9 months of divorce or husband’s death – child is marital.
  • Child support established in final decree (divorce) ‐ final determination of paternity.
  • Irrebutable presumption of paternity – artificial insemination during marriage and husband and wife consented.
72
Q

PATERNITY AND CHILDREN:

Acknowledgment

A

Father must pay child support if he “expressly acknowledges” in writing.

73
Q

PATERNITY AND CHILDREN:

Estoppel

A

If husband NOT father: he may be estopped (prevented) from denying to pay child support if:

  1. He represented he would pay child support;
  2. Wife relied on that representation; AND
  3. Wife suffered economic deteriment
74
Q
A
75
Q

PATERNITY AND CHILDREN:

Statute of Limitations

A

4 years

Runs from time of child’s majority

  • Retroactive support may be ordered up to 24 months prior to the filing of the petition. The defense of laches is generally inapplicable to an award of retroactive support.
  • There is no time limit for motions for relief from judgment based on the filing of a fraudulent financial affidavit in paternity or marital cases. The fraud must be established by a POTE.
76
Q

PATERNITY AND CHILDREN:

Disestablishment of Paternity

A
  • If man has been paying child support payments, he can terminate those payments if: Newly‐discovered evidence comes to light that he is NOT the father; Affidavit is filed; New evidence EXCLUDES the man; and Man is current in child support.
  • Relief MUST be granted: When child is UNDER 18 at time of petition; Testing was accurate; Man did not ADOPT child; Child was not from artificial insemination during marriage; & Man did not thwart biological father from asserting rights.
  • Relief cannot be granted if: Man voluntarily acknowledged paternity; Married the mother and voluntarily assumed parental obligations; Voluntarily expressed to support the child; OR Disregarded official notice of testing.
77
Q

PATERNITY AND CHILDREN:

Personal Jurisdiction over Out‐of‐State Parent

A

To establish PJ over an out‐of‐state parent to enforce child support obligations or determine parentage:

  • Personal service on defendant;
  • Consent of defendant parent;
  • Current residency with child in state;
  • Past residency in state WITH paying expenses or support of child;
  • Child resides in state at direction of defendant;
  • Conception: Defendant had sex in state and MAY have resulted in child;
  • Defendant asserted parentage in putative father registry; OR
  • Other bases consistent with federal and state constitutions.
78
Q

PATERNITY AND CHILDREN:

General Info re: Children:

A
  • Always remember the phrase: “What’s in the best interests and welfare of the child?”
  • FL no longer uses the word custody; now uses parental responsibility
79
Q

PATERNITY AND CHILDREN:

Children:

Parental Responsibility and Time‐Sharing

A
  • BOTH parents have parental responsibility & time‐sharing rights.
  • Each minor child ‐ frequent and continuing contact with BOTH parents.
  • Encouraged to share the rights, responsibilities, and joys of raising their children
  • If parents cannot work it out, courts will order a time‐sharing schedule in the best interests and welfare of the child

Tip: Custody is now referred to as parental responsibility.

80
Q

PATERNITY AND CHILDREN:

Children:

Shared Parental Responsibility

A
  • Both parents must be willing and able to cooperate with one another regarding the well‐being of the child.
  • FL prefers shared parental responsibility UNLESS it is NOT in the best interests and welfare of the child
  • Neither parent has a superior right
81
Q

PATERNITY AND CHILDREN:

Children:

Sole Parental Responsibility

A
  • Shared parental responsibility is NOT in the best interests and welfare of the child
  • Other parent is unfit and unable to provide care
  • One parent has all decision‐making rights.
82
Q

PATERNITY AND CHILDREN:

Children:

Parrallel Shared Parental Responsibility

A
  • Court splits decision making based upon subject matter in which one parent has a special knowledge or skill.
  • E.g., medical or educational knowledge
83
Q

PATERNITY AND CHILDREN:

Children:

Time‐Sharing

A
  • Plan that specifies when a parent will be with a child at certain times
  • Includes overnights, holidays, birthdays, school breaks, etc.
  • Guidelines for activities, education, childcare, foreign travel, etc.
  • Court establishes schedule if parents cannot agree.
84
Q

PATERNITY AND CHILDREN:

Children:

Best Interests and Welfare of the Child Standard

A
  • Default rule: a parent is in the best position to care for a child, unless deemed unfit.
  • FL ‐ one parent should be selected as the primary residence
  • Tip: Parental responsibility, visitation, and child support issues may be brought without a pending dissolution action.
85
Q

PATERNITY AND CHILDREN:

Children:

Best Interests and Welfare of the Child Standard:

Factors Considered by the Court

A
  • Ability of the parents to provide the basic needs
  • Health of the parent
  • Willingness to promote relationship with other parent
  • Continuity of care in the child’s life
  • Who is the primary caregiver prior to the litigation
  • Wishes of child, if a mature age
  • Geographic location of each parent & travel time
  • History of domestic violence
  • Ability to protect the child from the litigation

Race MAY NOT be a factor.

Religion MAY be a factor.

86
Q

PATERNITY AND CHILDREN:

Children:

Best Interests and Welfare of the Child Standard:

Third‐Party Rights

A
  • Legal parents presumptively get parental responsibility, unless:
    • Deemed unfit;
    • Detrimental to the child; or
    • Parent’s rights have been terminated.
  • Stepparent or grandparent has priority over a stranger.
  • Nonparents cannot bring parental responsibility proceedings, UNLESS part of a dependency hearing.
87
Q

PATERNITY AND CHILDREN:

Children:

Best Interests and Welfare of the Child Standard:

The Child’s Preference

A
  • MAY be considered if of sufficient maturity
  • NO statutory age
  • A child in a contested case will never be brought to court, deposed, or brought to a deposition unless ordered by the court ‐ court needs good cause
88
Q

PATERNITY AND CHILDREN:

Children:

Best Interests and Welfare of the Child Standard:

Guardian Ad Litem

A

Legal counsel may be appointed for the child.

89
Q

PATERNITY AND CHILDREN:

Children:

Best Interests and Welfare of the Child Standard:

Siblings

A

Courts avoid separating siblings.

90
Q

PATERNITY AND CHILDREN:

Children:

Best Interests and Welfare of the Child Standard:

Domestic Violence

A
  • MUST be considered in determining parental responsibility
  • Conviction (first degree misdemeanor or higher) creates rebuttable presumption of a detriment to the child.
  • Child support is still owed.
91
Q

PATERNITY AND CHILDREN:

Children:

Best Interests and Welfare of the Child Standard:

Parenting Course

A

Each party must complete a court‐approved course.

92
Q

PATERNITY AND CHILDREN:

Children:

Best Interests and Welfare of the Child Standard:

Parenting Plan

A
  • If parties cannot agree, court will develop a plan.
  • Court can appoint parenting coordinator to facilitate development of parenting plan.
93
Q

PATERNITY AND CHILDREN:

Children:

Best Interests and Welfare of the Child Standard:

Fostering Relationships

A

Court can require, in the order, that each parent foster a loving relationship between the child and the other parent.

94
Q

PATERNITY AND CHILDREN:

Children:

Best Interests and Welfare of the Child Standard:

“Keeping Children Safe” Act (2007)

A

Creates rebuttable presumption that a parent who committed or allegedly committed sexual abuse – contact with child is contrary to best interests.

95
Q

PATERNITY AND CHILDREN:

Children:

Best Interests and Welfare of the Child Standard:

Social Investigation

A
  • Court may order Department of Children and Families Services to conduct investigation.
  • Interviews, psychological evaluations, home visits, etc.
96
Q

PATERNITY AND CHILDREN:

Enforcement, Modification, and Termination of Parental Responsibility Order:

Enforcement

A
  1. Remedies
    • Remedies available for NON‐COMPLIANCE by other party:
      • Order additional time to make up for missed time, if in best interests of the child
      • Awarding attorney’s fees, court costs, community service
    • Court cannot deny visitation for failure to pay child support 2) Restrictions on Removing the Child from the State
  2. If there is a reasonable risk that the child might be removed from the state, the court can order the “risky” parent to post bond or surrender the child’s passport.
97
Q

PATERNITY AND CHILDREN:

Enforcement, Modification, and Termination of Parental Responsibility Order:

Modification

A
  • Florida – “change in circumstances” standard
  • Must be substantial, material, and unforeseen from the prior order
  • Must be permanent, involuntary material, and unforeseeable at the time the final judgment was entered
  • Must be in best interest of the child and promote stability
98
Q

PATERNITY AND CHILDREN:

Enforcement, Modification, and Termination of Parental Responsibility Order:

Modification:

Relocation

A
  • If more than 50 miles: Written consent from any party who has time‐sharing with child; or Court order.
  • Must show proof of employment and that the relocation is in best interests and welfare of the child
  • Failure to comply with pre‐relocation approval can subject the violator to contempt proceedings, as well as compel the child’s return to Florida.
  • Factors considered by the court: Involvement of BOTH parents with child; age and needs of child; Current employment and financial circumstances of parents; Child’s preferences; Movant’s history of promoting parenting time; Enhancing effect the child’s life; Motive of each parent; Whether child support payments are current; Any domestic violence history
99
Q

PATERNITY AND CHILDREN:

Enforcement, Modification, and Termination of Parental Responsibility Order:

Modification:

Military Service

A
  • Court may only modify order temporarily
  • Must be clear and convincing evidence that relocation is in the best interests of the child
  • Must revert back to original order after end of deployment
100
Q

PATERNITY AND CHILDREN:

Enforcement, Modification, and Termination of Parental Responsibility Order:

Modification:

Termination

A

Order terminates upon:

  • Death of parent; or
  • Majority (18 years old) of child.
101
Q

PATERNITY AND CHILDREN:

Child:

Visitation and Parenting Time:

A
  • Visitation is in the best interests of the child.
  • Denying visitation is very unusual – only if seriously endangers child.
  • Third Parties: compelling state interest is required to give grandparents rights.
  • Sexual Relationship or Cohabitation: Can’t restrict visitation unless adverse impact on child
  • HIV/Aids: Court cannot deny visitation or parenting time due to HIV/AIDS.
  • Electronic Communication: CAN’T supplant in‐person contact; Rebuttable presumption in favor of reasonable telephone communication ‐ must be ordered
102
Q

PATERNITY AND CHILDREN:

Child:

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA):

A
  • Purpose is to prevent interstate jurisdictional disputes
  • Enacted in Florida
  • Court must possess subject matter jurisdiction.

Tip: Look over these materials in the outline for more details.

103
Q

PATERNITY AND CHILDREN:

Child:

Parental Kidnapping Prevention Act (“PKPA”)”

A

Applies to kidnapping cases and interstate parental responsibility disputes

104
Q

PATERNITY AND CHILDREN:

Child:

Parental Consent

A
  • NEEDED in certain circumstances – medical procedures.
  • Religious beliefs ‐ can contradict what is in the child’s best interest.
  • Courts can intervene and declare that the child has been neglected.
  • Parents may not erode the child’s constitutional rights ‐ parenting rights are NOT absolute.
105
Q

CHILD SUPPORT:

Based on?

A

BOTH parents legally required to support minor child; Equal responsibility, unless circumstances dictate otherwise.

  • Based on child’s needs; NOT parents ability to pay/support until 18 years old. Exceptions: Extends until 19 if full‐time working on diploma; or Further extension if physical or mental condition disables child.
  • Based on any source of income: Wages, interests, dividends, rental income, capital gains, retirement benefits, social security benefits, etc.
  • Based on “income share” model: as if “all continued to live together”
106
Q

CHILD SUPPORT:

Sources of Support Sources:

A
  • Based on any source of income & “income share” model (As if “all continued to live together”): Wages, interests, dividends, rental income, capital gains, retirement benefits, social security benefits, etc.; Allocation of responsibility per respective net income
  • 3 public policy principles guide child support: Parents fundamental obligation to support children; Combined income as if intact home; & Minimize litigation.
  • BOTH parents must file financial affidavits & child support guidelines worksheet. Failure to file a financial affidavit results in court imputing income.
    • Party seeking to impute income of another must: Prove non‐compliance is voluntary and Identify the amount imputed. NOTE: Voluntary underemployment/unemployment differs from temporary voluntary income reduction (e.g., going to college).
  • “Rebuttable presumption” amount correct, court may deviate up or down 5%
    • If more than 5%, court must set out specific findings why.
    • Factors considered to warrant deviation: Child’s age; Unusual needs of the child (e.g., special education or medical needs); Standard of living; Station in life; AND Financial status of each parent.
  • Childcare Costs: Court will allow these costs to be credited and deducted in calculations.
107
Q

CHILD SUPPORT:

Medical Insurance

A
  • ALL child support orders must provide for health insurance
    • UNLESS not accessible or reasonable in cost
  • Cost is UNREASONABLE if exceeds 5% of gross income of insuring parent.
  • Court must include provision for uncovered medical and dental expenses.
    • Usually split between parents
108
Q

CHILD SUPPORT:

Post‐Secondary Education

A
  • No obligation to pay for post‐secondary education.
  • EXCEPTION: Mentally or legally dependent after 18 or may agree to pay for it.
109
Q

CHILD SUPPORT:

Subsequent Children

A
  • If subsequent child is born, not factored in.
  • Subsequent children ONLY considered regarding increase in child support.
  • NOTE: If a parent has a subsequent child and takes a second job specifically to help support that second child, court may disregard second job and income resulting from it in determining child support for first child.
110
Q

CHILD SUPPORT:

Modification of Child Support:

Substantial Change in Parent’s Circumstances

A
  • Change in occupation;
  • Increase in income;
  • Decrease in health;
  • Remarriage that creates additional obligations;
  • Substantial change defined as either a 15% or $50 difference in the resulting calculation (whichever is greater);
  • Changes in needs of party;
  • Needs of child; AND
  • If health insurance is NOW available to 1 party.

Tip: Be aware of fact pattern where obligor (payor) quits job voluntarily. Amount of child support may not be reduced.

111
Q

CHILD SUPPORT:

Modification of Child Support:

Changes in the Child’s Circumstances

A

Modification may occur if child:

  • Dies;
  • Is emancipated;
  • Gets married; or
  • Joins the armed services.

Burden is on MOVANT (parent seeking modification).
Retroactive to date of motion filing

112
Q

CHILD SUPPORT:

Modification of Child Support:

Incarceration

A
  • If obligor/payor is imprisoned, he must file PETITION.
  • Child support is suspended.
  • Monies due are still calculated.
  • Once released, court will hold hearing to determine realistic method of payment of past‐due, current, and future support.
113
Q

CHILD SUPPORT:

Termination of Support

A

Support (automatically) ends when:

  • Child turns 18;
  • UNLESS special circumstances of a disability, or the child is between 18-19 and still in high school;
  • Child marries;
  • Termination of parental rights; or
  • Child dies.

Tip: If question is about child emancipation, discuss the totality of the circumstances – it is fact specific.

114
Q

CHILD SUPPORT:

Jurisdiction for Modification of Support

A

Only two ways to move jurisdiction:

  1. Neither party nor child live in court of continuing jurisdiction; or
  2. By agreement of the parties.

If neither bases are present, new state should not modify a child support order.

115
Q

CHILD SUPPORT:

Enforcement of Child Support Awards

A

Enforced through:

  • Civil contempt orders
  • Income withholding (wage garnishment)
116
Q

CHILD SUPPORT:

Enforcement of Child Support Awards:

Withholding Income

A
  • If default occurs, employer is notified of wage garnishment order.
  • 15 days’ notice must be given to obligor.
  • Obligor may request a hearing
    • If no hearing, order goes into effect in 2 weeks.
117
Q

CHILD SUPPORT:

Enforcement of Child Support Awards:

Civil Contempt

A
  • Violation of court order is required.
  • Fine or incarceration can result. o Notice and opportunity to be heard are required.
  • Willful failure to pay is a 1st-degree misdemeanor.
118
Q

CHILD SUPPORT:

Enforcement of Child Support Awards:

Criminal Contempt

A
  • Jail term imposed for willful failure to pay.
  • Must be proved beyond a reasonable doubt
119
Q

CHILD SUPPORT:

Enforcement of Child Support Awards:

Child Support Recovery Act

A
  • Federal crime to willingly fail to pay child support for child in another state.
  • BUT ONLY IF over $5,000 owed or if unpaid for more than one year
120
Q

CHILD SUPPORT:

Enforcement of Child Support Awards:

Other Sanctions

A
  • Intercept tax refunds
  • Suspend driver’s license
  • Suspend professional licenses
  • Report to Credit Bureau
  • Seize property or assets
  • Attorney’s fees
121
Q

CHILD SUPPORT:

Enforcement of Child Support Awards:

Enforcement in Other Jurisdictions

A
  • UIFSA ‐ Uniform Interstate Family Support Act
  • Adopted in all states
  • Created to simplify collection in another jurisdiction

Tip: If more than Florida is involved, always discuss UIFSA.

122
Q

CHILD SUPPORT:

Enforcement of Child Support Awards:

Full Faith and Credit for Child Support Orders Act (“FFCCSOA”)

A

Court MUST give FFC to other court’s child support order as long as:

  • Original court had SMJ and PJ;
  • Notice was given; and
  • Opportunity to be heard.
123
Q

TERMINATION OF PARENTAL RIGHTS, DEPENDENCY CASES, AND ADOPTION:

Voluntary Termination of a Natural Parent’s Rights:

Parental Consent

A
  • Biological parents may voluntarily give up rights and consent to adoption.
  • If biological parent is less than 14 years old, MUST BE witnessed by parent/guardian.
  • If biological parent is over 14, can give up consent on her own.
  • Consent CANNOT be revoked when biological mother reaches age of majority
124
Q

TERMINATION OF PARENTAL RIGHTS, DEPENDENCY CASES, AND ADOPTION:

Voluntary Termination of a Natural Parent’s Rights:

Parental Consent:

Consent of Fathers

A

5 ways to determine if father has right to consent/object:

  • Married to biological mother at time of conception;
  • Filed affidavit of paternity or listed on birth certificate;
  • Father timely acknowledges paternity;
  • Previously adopted the minor child; or
  • Court determined him to be the father.

NOTE: If the man is determined to be the father due to the marital presumption and a second man also claims to be the father and has consistently paid child support, then the second’s man consent is needed as well.

125
Q

TERMINATION OF PARENTAL RIGHTS, DEPENDENCY CASES, AND ADOPTION:

Voluntary Termination of a Natural Parent’s Rights:

Parental Consent:

Consent by Failure to Register

A
  • If putative father (assumed) has made no commitment to parenthood, may be denied right to consent.
  • No denial of rights if father made a commitment (relationship or money).
  • Registering with putative father registry preserves rights to CONSENT.
126
Q

TERMINATION OF PARENTAL RIGHTS, DEPENDENCY CASES, AND ADOPTION:

Voluntary Termination of a Natural Parent’s Rights:

Parental Consent:

Notice

A
  • If biological mother identifies biological father, adopting agency MUST give notice.
    • Biological father has 30 days to claim paternity.
  • Father’s consent NOT REQUIRED if he filed instrument of DENIAL.
127
Q

TERMINATION OF PARENTAL RIGHTS, DEPENDENCY CASES, AND ADOPTION:

Voluntary Termination of a Natural Parent’s Rights:

Parental Consent:

Abandonment

A
  • No adoption consent required if child is abandoned
  • Factors deeming “abandoned”:
    • Parent makes no provision for child’s support AND fails to establish relationship with child;
    • Incarceration for violent crime;
    • Incarceration for majority of child’s minor life; or
    • Court determines that the “relationship is detrimental” to the child.
128
Q

TERMINATION OF PARENTAL RIGHTS, DEPENDENCY CASES, AND ADOPTION:

Voluntary Termination of a Natural Parent’s Rights:

Parental Consent:

Additional Consent

A
  • The child if older than 12 years must consent to adoption.
  • Physical custodian must also consent (if not biological parent).
  • Anyone who is entitled to have CUSTODY (but doesn’t).
129
Q

TERMINATION OF PARENTAL RIGHTS, DEPENDENCY CASES, AND ADOPTION:

Voluntary Termination of a Natural Parent’s Rights:

Parental Consent:

Execution of Consent

A
  • Biological mother CANNOT consent earlier than 48 hours after birth.
  • Biological father may consent anytime after birth.
130
Q

TERMINATION OF PARENTAL RIGHTS, DEPENDENCY CASES, AND ADOPTION:

Involuntary Termination of Parental Rights

A
  • ONLY a court can involuntarily terminate parent’s rights.
  • Counsel must be provided.

Grounds for Involuntary Termination:

  • Abandonment
  • Threat to child
  • Sexual abuse
  • Lengthy incarceration
  • In utero drug/alcohol exposure
  • Rights to child’s siblings were terminated
131
Q

TERMINATION OF PARENTAL RIGHTS, DEPENDENCY CASES, AND ADOPTION:

Dependency Cases

A
  • The state has responsibility for welfare of children in the state.
  • Dependency proceedings begin when child is sheltered (means removed from parents/guardian custody).
    • Removal is probable cause of abuse, abandonment, or neglect.
  • Trial will be held – must be proven by a POTE that the child is dependent on the state.
  • Child adjudicated “dependent”:
    • Case plan is entered for parents.
    • If parents comply and child has been safe for 6 months – case can be terminated.
    • If parents fail, child permanently placed in another’s care.
132
Q

TERMINATION OF PARENTAL RIGHTS, DEPENDENCY CASES, AND ADOPTION:

Preliminary Dependency Proceedings

A

Department of Children and Families (DCF) investigates report of abuse.

  • Duty to Report: Anyone who has reasonable cause to suspect abuse, neglect, or abandonment must report.
  • Acceptance of Report: “Perpetrator” must be a parent, legal custodian, or person responsible for the child.
  • Investigation: MUST start within 24 hours
  • Removal: Will occur if sworn testimony or probable cause
  • Shelter Hearing:
    • If no probable cause, child must be returned to parents.
    • If probable cause, shelter hearing must be held within 24 hours.
133
Q

TERMINATION OF PARENTAL RIGHTS, DEPENDENCY CASES, AND ADOPTION:

Dependency Proceedings:

Petition?

Notice?

Right to Counsel?

Jurisdiction?

A
  • Petition: Can be filed by DCF Attorney or person who is alleging facts regarding the situation
  • Notice: Must be provided to: DCF; Parents/Guardian; Petitioner; Child; Guardian ad litem
  • Right to Counsel:Parent MUST be advised of this right at every stage of the proceedings.
  • Jurisdiction: Court continues to have jurisdiction, unless the child: Is returned to parents for 6 months; Turns 18; or Is adopted
134
Q

TERMINATION OF PARENTAL RIGHTS, DEPENDENCY CASES, AND ADOPTION:

Dependency Proceedings:

Arraignment?

Adjudicatory Hearing?

A
  • Arraignment: Parents MUST respond to allegations within 28 days of the shelter hearing or 7 days after dependency petition is filed
  • Adjudicatory Hearing:
    • Must be held within 30 days after the arraignment;
    • Allegations must be proved by a POTE;
    • If child deemed dependent, proceed to disposition.
135
Q

TERMINATION OF PARENTAL RIGHTS, DEPENDENCY CASES, AND ADOPTION:

Dependency Proceedings:

Disposition Hearing?

Post‐Disposition Proceedings?

A
  • Disposition Hearing:
    • Court receives a case plan, a predisposition study, and other evidence
    • Court enters order where child will live.
    • Approves case plan and what parents need to do to correct situation.
  • Post‐Disposition Proceedings
    • Judicial review held within 90 days of case plan approval
    • Review compliance with case plan
136
Q

TERMINATION OF PARENTAL RIGHTS, DEPENDENCY CASES, AND ADOPTION:

Adoption

A
  • Previous parent‐child relationship is terminated
  • New parent‐child relationship is created.
  • Parties may adopt children or adults
  • Before adoption of a MINOR** **can occur, biological parents’ rights must be terminated.
    • Adoption agency must be used, UNLESS adoption is by a relative or stepparent.
    • Minor CANNOT be placed in an adoptive home until a preliminary home study approves of the home.
      • Must occur within 1 year of such placement
    • If NO ADOPTIVE HOME is available, minor must be placed in a licensed foster care home.
137
Q

TERMINATION OF PARENTAL RIGHTS, DEPENDENCY CASES, AND ADOPTION:

Adoption:

Adoption Relationship

A
  • Records are sealed
  • Within 30 days, a new birth certificate is issued
  • Once completed, child is adopted for all purposes (inheritances, rights, privileges, etc.)
138
Q

TERMINATION OF PARENTAL RIGHTS, DEPENDENCY CASES, AND ADOPTION:

Adoption:

Payment of Money

A
  • Florida prohibits payment to a natural parent for an adoption.
    • EXCEPTIONS:
      • Pregnancy costs;
      • Living expenses for six weeks after birth; and
      • Legal fees
        • None of these can exceed $5,000.
  • Florida allows for “baby brokers.”
    • Written acknowledgment that broker represents adoptive parents
    • Required to be given to all who must consent
    • Failure is a 3rd‐degree felony
139
Q

TERMINATION OF PARENTAL RIGHTS, DEPENDENCY CASES, AND ADOPTION:

Adoption:

Persons Eligible to Adopt

A
  • Unmarried adult
  • Married couples adopting together
  • A married person (stepparent), if spouse is other parent and approves o Adoption by gay adults is no longer prohibited.
  • Disabled persons may adopt as well ‐ so long as capable of care.
  • Adopting an adult:
    • Adult adoptee must consent
    • Spouse of adoptee, if there is one, must consent.
140
Q

TERMINATION OF PARENTAL RIGHTS, DEPENDENCY CASES, AND ADOPTION:

Adoption:

Termination of Parental Rights

A
  • Full evidentiary hearing is required.
  • Standard: CLEAR and CONVINCING EVIDENCE
141
Q

TERMINATION OF PARENTAL RIGHTS, DEPENDENCY CASES, AND ADOPTION:

Adoption:

Voiding Order that Terminated Parents Rights

A

MAY be voided if the movant falsely provided the info

142
Q

TERMINATION OF PARENTAL RIGHTS, DEPENDENCY CASES, AND ADOPTION:

Adoption:

Petition for Adoption:

When and Where to file?

A
  • When to file? At least 60 days after termination of parental rights, unless relative is adopting
  • Where to file? County in which:
    • Child resides;
    • Petitioner resides;
    • Agency that is housing child is located; or
    • Same court that entered termination of parental rights.
143
Q

TERMINATION OF PARENTAL RIGHTS, DEPENDENCY CASES, AND ADOPTION:

Adoption:

Legal Effects of Adoption

A
  • Adoptive parents have all rights and responsibilities of biological parents.
  • Adopted child has all rights and responsibilities of marital child.
  • Biological parents have no right of visitation
144
Q

TERMINATION OF PARENTAL RIGHTS, DEPENDENCY CASES, AND ADOPTION:

Adoption:

Surrogacy

A
  • Florida prohibits contracts for the sale or transfer of fetus.
  • HOWEVER, non‐binding, pre‐planned adoptions are permissible.
  • Payments to birth mother are prohibited
    • EXCEPTION: medical expenses, living expenses, adoption costs
145
Q

TERMINATION OF PARENTAL RIGHTS, DEPENDENCY CASES, AND ADOPTION:

Guardianship:

A

Florida has a procedure to provide guardians for incapacitated people.

  • Court must determine guardianship is necessary by clear and convincing evidence.
  • Individual must receive notice and has a right to counsel.
  • Incapacitated person may lose significant rights: Vote; Drive; Marry; Consent to medical care; Right to contract
  • Rights retained: Be treated humanely; Communicate with others; Legal counsel; Have visitors; Be as independent as possible; Receive information about all proceedings involving them
  • Guardians must be court appointed.
    • May ONLY exercise rights specifically in vested in the guardian
    • Must file an annual report

Florida Portion of Bar (Part A) (Me) (25 decks)

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