Types of Issues Our Office Deals in Including But Not Limited to:

  • Divorce
  • Parenting time (Your rights as a parent!!!)
    • Before a dissolution of marriage
    • Best interest of Minor child(ren)
  • Parenting Plan
    • Decision-Making
    • Time-Sharing
  • Shared Responsibility
  • Sole Responsibility
  • Ultimate Responsibility
  • Rights Of Putative Fathers
    • Presumption Of Legitimacy
    • Paternity Testing
  • Time sharing schedule
    • Historical Background
    • Development
    • Child’s Needs
    • Enforcement
    • Time-Sharing Guidelines

Divorce

Parenting Time (Your Rights as a Parent!!!)

Before a dissolution of marriage, both parents are joint natural guardians of their minor children and have joint and equal rights of custody, care, and control. F.S. 744.301(1). Generally, unless the parties are able to reach an agreement that is approved by the court, on dissolution of their marriage the judge determines the future parental responsibilities and time-sharing of the parties’ children. The express public policy of Florida is that each minor child should have frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and that parents should share the rights, responsibilities, and joys of child-rearing. F.S. 61.13(2)(c)1. Attorneys would serve their clients well by stressing this policy to them and the court. Florida law recognizes the contributions both parents make to rearing healthy children and, therefore, intends for both parents to be actively involved with! their children after divorce. See, e.g., Kantor v. Kantor, 545 So.2d 1378 (Fla. 4th DCA 1989). Back to Menu Copyright © 2008 Florida Dissolution of Marriage, Ninth Edition

The best interest of the child test remains the primary consideration for purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule. F.S. 61.13(3). See Richardson v. Richardson, 442 So.2d 1005 (Fla. 3d DCA 1983); Brown v. Brown, 409 So.2d 1133 (Fla. 4th DCA 1982); Kershner v. Crocker, 400 So.2d 126 (Fla. 5th DCA 1981). The continuing problem with this test, however, was expressed by Judge Anstead in Barnhill v. Barnhill, 353 So.2d 923, 924 (Fla. 4th DCA 1978): ‘Who among us has the wisdom to know . . . what decision will be in the best interests of the children?’ The test assumes that the judge exercising his or her discretion has wisdom and expertise in family law and the developmental needs of children and the assistance of competent experts (psychologists, social workers, social investigators, guardians ad litem, and mediation specialists). The determination of the best interest of the child is directly related to the quality of the judicial determination. The attorney’s task is formidable. Education of the client is vital to avoid litigation and, more important, to avoid unnecessary exposure of the family to the vicissitudes of the court. Indeed, the avoidance of litigation may be the best service an attorney can give to a family caught in the turmoil of a dispute over children. Additionally, an amicable settlement is important because the parents will remain ‘connected’ through the children, even after they are adults, for family events such as graduations, weddings, and funerals.

Back to Top

Parenting Plan

Parenting plan: Any parenting plan approved by the court must, at a minimum, describe in adequate detail how parents will share and be responsible for the daily tasks associated with the upbringing of the child, the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent, a designation of who will be responsible for any and all forms of health care, school-related matters, other activities, and the methods and technologies that the parents will use to communicate with the child. Back to Menu F.S. 61.13(2)(b).
A parenting plan has two separate components:

  • Decision-making – parental responsibilities and privileges to make decisions relating to the health, education, and welfare of the child, and
  • Time-sharing – where the child lives at any given time and contact with the other parent.

These two aspects are distinct. Each must be examined separately and then determined according to the best interests of the child. Factors to be considered by the court in establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including the time-sharing schedule, are found in F.S. 61.13(3).

Copyright © 2008 Florida Dissolution of Marriage, Ninth Edition

Back to Top

Shared Responsibility

With shared parental responsibility, both parents retain full parental rights and responsibilities with regard to their children and confer to make mutual decisions about the children. F.S. 61.046(16). A statutory presumption exists that shared parental responsibility is in the best interest of the minor children. F.S. 61.13(2)(c)2. The burden is on the party opposing shared parental responsibility to demonstrate that it will be detrimental to the children. Kent v. Burdick, 573 So.2d 61 (Fla. 1st DCA 1990). But see F.S. 61.13(2)(c)2 (evidence that parent has been convicted of felony of third degree or higher involving domestic violence creates rebuttable presumption of detriment to child), discussed in 11.41.

Although F.S. 744.301(1) provides that both parents are joint natural guardians of their minor children and have joint and equal rights of custody, care, and control, F.S. 61.046(16) defines shared parental responsibility as ‘a court-ordered relationship’ . Therefore, to secure the protections of the statute, it is recommended that a parent immediately seek a court order for shared parental responsibility and a specific parenting plan after the parties’ separation.

The District Court of Appeal, Second District, has held that S. 61.13(2)(c)2 requires that the final judgment expressly grant shared parental responsibility. Cortright v. Cortright, 564 So.2d 1261 (Fla. 2d DCA 1990).

Back to Top

Sole Responsibility

Sole parental responsibility is defined in F.S. 61.046(17) as ‘a court-ordered relationship in which one parent makes decisions regarding the minor child.’ Sole parental responsibility presumptively is not in the child’s best interest, given the public policy expressed in F.S. 61.13. In awarding sole parental responsibility, the statute requires a finding, supported by competent substantial evidence, that shared parental responsibility would be detrimental to the child. F.S. 61.13(2)(c)2; Coyne v. Coyne, 895 So.2d 469 (Fla. 2d DCA 2005); Maslow v. Edwards, 886 So.2d 1027 (Fla. 5th DCA 2004); Branch v. Branch, 631 So.2d 386 (Fla. 4th DCA 1994); Nichols v. Nichols, 432 So.2d 648 (Fla. 1st DCA 1983). See Kapner, Shared parental responsibility: Questions and answers, 57 Fla. Bar J. 163 (March 1983).

F.S. 61.13(2)(c)2 requires the court to consider evidence of domestic violence or spouse abuse as evidence of detriment to the child in determining parental responsibility.

Back to Top

Ultimate Responsibility

An alternative to sole parental responsibility in a case in which there is insufficient evidence to support a finding of detriment to the child and award of sole parental responsibility may lie in F.S. 61.13(2)(c)2a, which allows the court to ‘grant to one party the ultimate responsibility over specific aspects of the child’s welfare or . . . divide those responsibilities between the parties based on the best interests of the child.’ Issues for which ultimate responsibility may be granted include religious training, school choices, or medical care and treatment. See Kasdorf v. Kasdorf, 931 So.2d 257 (Fla. 4th DCA 2006).

Judge Winifred Sharp, in her dissent in Iannone v. Iannone, 542 So.2d 487, 488 (Fla. 5th DCA 1989), noted: ‘The joint responsibility concept does not work in some cases, such as this, where the parties can not agree on what time it is, even if they are looking at the same clock. It is then the job of the dissolution court to place the responsibility for such decisions on one parent or the other.’ Although the court may grant ultimate responsibility over specific aspects of the child’s welfare, such orders must be made on a case-by-case basis after an evidentiary hearing concerning the best interest of the child. Holland v. Holland, 458 So.2d 81 (Fla. 5th DCA 1984). See also Hancock v. Hancock, 915 So.2d 1277 (Fla. 4th DCA 2005).

In Watt v. Watt, 966 So.2d 455 (Fla. 4th DCA 2007), the court noted that shared parental responsibility anticipates that the parents can and will discuss issues regarding the children and come to some agreement. When it is clear that they cannot agree, modification of shared parental responsibility to grant ultimate responsibility to one parent is in order because a substantial change in circumstance has occurred, requiring a modification of the final judgment in the best interest of the child(ren).

In Markham v. Markham, 485 So.2d 1299 (Fla. 5th DCA 1986), however, the court stated that giving decision-making authority for all matters to one party undermined the mandate of former F.S. 61.13(2)(b)2. The court went on to say: ‘If the parties cannot agree or work together at all, then a finding pursuant to 61.13(2)(b)2, would be appropriate’ before a court gives ultimate authority to one or both parents. Markham, 485 So.2d at 1300. See Kuharcik v. Kuharcik, 629 So.2d 224 (Fla. 4th DCA 1993); Wheeler v. Wheeler, 501 So.2d 729 (Fla. 1st DCA 1987). Similarly, the trial court’s judgment that all visitation rights of the husband were to be exercised only on the express approval of the wife, and that the wife would have the right to direct and control visitation as circumstances dictated, constituted reversible error in Letourneau v. Letourneau, 564 So.2d 270 (Fla. 4th DCA 1990).

Back to Top

Time Sharing Schedule

Historical Background
Before October 1, 2008, F.S. Chapter 61 used the term ‘primary residence.’ It was presumed that it was in the child’s best interest to have a primary home, in which the child resided most of the time, and a secondary home, in which the child resided some of the time. This concept evolved into the status of parents being defined by terms such as ‘primary’ and ‘secondary’ parent, with the time-sharing schedule between the parties and child(ren) based on that status. The primary residential parent had an affirmative duty to encourage the children’s contact with the secondary residential parent and to nurture the relationship. See Schutz v. Schutz, 581 So.2d 1290 (Fla. 1991).

Effective October 1, 2008, the concepts of primary and secondary residential parents have been removed from the statutes to reduce litigation between parties. No longer will parties fight over titles and designations. The affirmative duty to nurture the relationship between the child(ren) and the other parent remains.

In view of the foregoing legislative changes, should a party raise the issue of primary residence in the pleadings, the request should be dismissed because courts no longer have jurisdiction to make such a designation.

Back to Top

Development

A ‘time-sharing schedule’ is a timetable that must be included in the parenting plan, which ‘specifies the time, including overnights and holidays, that a minor child will spend with each parent.’ F.S. 61.046(22). Even if agreed to by the parents, the schedule must still be approved by the court. Id. Although the schedule should be flexible enough to address changes in the child’s needs as the child grows older, see 11.18, specific delineation of minimum contact is advised for three reasons. First, this will ease the trauma of separation and provide consistency and continuity in the child’s life. Second, unless the schedule is more specific than ‘reasonable and liberal access, contact, and time-sharing,’ there is nothing for the court to enforce. See Lanza v. Lanza, 804 So.2d 408 (Fla. 4th DCA 2001); Buttermore v. Meyer, 559 So.2d 357 (Fla. 1st DCA 1990); Kranis v. Kranis, 313 So.2d 135 (Fla. 3d DCA 1975). Third, if each parent! has a calendar of specific dates and times when time-sharing will occur, the potential for conflict is greatly reduced. See Montalvo v. Montalvo, 949 So.2d 350 (Fla. 4th DCA 2007).

Time-sharing arrangements may differ from family to family. Two major needs should be considered: that children and parents need blocks of continuous time together, including overnight time; and that the blocks of time should be long enough to ensure that each parent remains a real parent, rather than one becoming identified with homework and bedtimes and the other with recreation. Individual time for each child with each parent may be incorporated in a time-sharing schedule.

Flexible time-sharing schedules should be based on the changing needs of the growing child. For example, teenagers may not want to be forced to adhere to a schedule. Agreements or orders should identify time-sharing changes by age group. The parents’ schedules should also be examined and time-sharing arranged to minimize the use of day care or babysitters. For example, if one parent’s workday ends at 3 p.m., the children can be with that parent rather than in day care after school. The closer the time-sharing arrangement comes to providing equal access, the greater the importance of close proximity of the parents’ homes.

The standard arrangement adopted by many trial courts of alternate weekends and one evening per week for dinner encourages a guest-host relationship and discourages effective and regular parenting and time-sharing by both parents. The arrangement is based on convenience with little evaluation of the child’s developmental and emotional needs, especially a very young child who fares better through more regular contact with both parents than the ‘every other weekend’ schedule allows.

The parents, the attorney, and the court must be satisfied that the time-sharing arrangement is reasonable and workable on its face. For the arrangement to protect the child’s best interests, it must also be tailored to the family’s situation.

Back to Top

Child’s Needs

In her book, Second Chances: Men, Women, and Children a Decade after Divorce (Ticknor & Fields 1989), psychologist Judith Wallerstein confirms that the trauma of divorce follows children into adulthood. Dislocation created by their parents’ divorce, far from disappearing after adolescence, may become a permanent lack of direction or a sense of having little control over their lives. The best interest standard focuses on the child, yet the ‘every-other-weekend-and-one-night-for-dinner’ arrangement, regardless of the age or psychological needs of the child, is common and focuses more on the parents’ needs. Attorneys must be assertive with parents and the court to bring awareness of the need to adjust time-sharing to the age and needs of the child. See Collins v. Collins, 737 So.2d 1204 (Fla. 5th DCA 1999) (recognizing need for frequent contact with younger children).

In Peaden v. Slatcoff, 522 So.2d 959 (Fla. 1st DCA 1988), the court affirmed the trial court’s refusal to alter four years of reasonably successful equally shared physical custody. Other Florida decisions have held that growth and school changes do not constitute a substantial change in circumstances for a modification of custody. See Collins v. Newton, 362 So.2d 174 (Fla. 2d DCA 1978); Teta v. Teta, 297 So.2d 642 (Fla. 1st DCA 1974). The courts have concentrated on F.S. 61.13(3)(d) and the desirability of maintaining continuity, despite the changes that may occur as the child matures and grows and his or her needs change. For a cogent criticism of this approach see Batt, Child Custody Disputes and the Beyond the Best Interests Paradigm: A Contemporary Assessment of the Goldstein/Freud/Solnit Position and the Group’s Painter v. Bannister Jurisprudence, 16 Nova L. Rev. 621 (1992). Attorneys, therefore, mu! st artfully draw the parenting plan to meet the needs of the maturing child and not rely on future modifications.

Back to Top

Enforcement

F.S. 61.13(4)(c) provides the court with specific means to enforce the time-sharing schedule in the parenting plan. When a parent refuses to comply with the time-sharing schedule in the parenting plan without proper cause, the statute lists a number of sanctions that the court may impose. Under F.S. 61.13(4)(c), the court:

  1. Shall, after calculating the amount of time-sharing improperly denied, award the parent denied time a sufficient amount of extra time-sharing to compensate for the time-sharing missed, and such time-sharing shall be ordered as expeditiously as possible 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-sharing. In ordering any makeup time-sharing, the court shall schedule such time-sharing in a manner that is consistent with the best interests of the child or children and that is convenient for the nonoffending parent and at the expense of the non-compliant parent.
  2. May order the parent who did not provide time-sharing or did not properly exercise time-sharing under the time-sharing schedule to pay reasonable court costs and attorney’s fees incurred by the non-offending parent to enforce the time-sharing schedule.
  3. May order the parent who did not provide time-sharing or did not properly exercise time-sharing under the time-sharing schedule to attend a parenting course approved by the judicial circuit.
  4. May order the parent who did not provide time-sharing or did not properly exercise time-sharing under the time-sharing schedule to do community service if the order will not interfere with the welfare of the child.
  5. May order the parent who did not provide time-sharing or did not properly exercise time-sharing under the time-sharing schedule to have the financial burden of promoting frequent and continuing contact when that parent and child reside further than 60 miles from the other parent.
  6. May, upon the request of the parent who did not violate the time-sharing schedule, modify the parenting plan if modification is in the best interests of the child.
  7. May impose any other reasonable sanction as a result of noncompliance.

Violations of the time-sharing schedule in the parenting plan, without proper cause, may also be punished by contempt of court or other remedies that the court deems appropriate. F.S. 61.13(4)(d). See Levy v. Levy, 861 So.2d 1211 (Fla. 3d DCA 2003).

Back to Top

Time-Sharing Guidelines

Some judicial circuits in Florida and other states have created time-sharing guidelines. These standard schedules, however, should not be ordered routinely for parents who are unable to agree. See Wattles v. Wattles, 631 So.2d 349 (Fla. 5th DCA 1994) (because there are no standard time-sharing rights defined by any statute or rule, trial court abused its discretion by imposing its standard time-sharing schedule, which was built primarily around school year, when child was only two years old). See also Owens v. Stallings, 816 So.2d 1266 (Fla. 2d DCA 2002) (order reversed for failure to attach time-sharing ‘guidelines’); Owen v. Owen, 633 So.2d 1156 (Fla. 5th DCA 1994) (time-sharing schedule not necessarily appropriate just because it is standard).

The Wattles court also criticized the trial judge for asking the parties’ counsel to submit their suggested time-sharing schedules in their proposed judgments rather than directing the preparation of a judgment according to specific instructions after the court’s decision was made based on its consideration of the evidence. Citing its decision in Polizzi v. Polizzi, 600 So.2d 490 (Fla. 5th DCA 1992), the appellate court reiterated that a trial court cannot delegate its decision-making authority to the attorneys of record.

  1. Relocation of children
  2. Modification of Final Judgments
  3. All Criminal Charges
  4. Domestic violence injunctions
  5. Paternity

Back to Top

Rights of Putative Fathers

Presumption of Legitimacy
A child conceived or born during a valid marriage is presumed to be a legitimate child. Legitimacy, however, is a related but distinct concept from paternity. The birth of a child to a husband and wife when the evidence is undisputed that the child is the biological offspring of another man does not determine paternity of the husband. Daniel v. Daniel, 695 So.2d 1253 (Fla. 1997). However, a child born during the marriage does not become an illegitimate child only because a court subsequently determines that the husband is not the child’s biological father. Id.

Back to Top

Paternity Testing

  • Alimony
  • Equitable distribution Business valuations
  • Forensic accounting
  • Enforceable Pre Nuptial Agreement
  • Enforceable Pose Nuptial Agreements
  • Child support
  • Department of Revenue
  • DL suspensions

F.S. 742.12(1) allows any party in a proceeding to establish paternity to request ‘scientific tests that are generally acceptable within the scientific community to show a probability of paternity.’ Because of their greater reliability, DNA tests are the most commonly used. The test results are admissible as evidence and weighed with other evidence of paternity unless the statistical probability of paternity equals or exceeds 95%. A statistical probability of paternity of 95% or more creates a rebuttable presumption that the alleged father is the biological father of the child. If the presumption is not rebutted, summary judgment will be entered. F.S. 742.12(4).

If the test results may show that a legal father is not the biological father and the legal father may lose parental rights he seeks to maintain, the court should appoint a guardian ad litem to represent the child’s interests before ordering paternity testing. Dept. of Health & Rehabilitative Services v. Privette, 617 So.2d 305 (Fla. 1993). See also Daniel v. Daniel, 695 So.2d 1253 (Fla. 1997) (husband had no duty to support child born during marriage when he was not biological father, but child remained legitimate).

In D.F. v. Dept. of Revenue ex rel. L.F., 823 So.2d 97, 100 (Fla. 2002), the court held that ‘a final judgment of dissolution of marriage which establishes a child support obligation for a former husband is a final determination of paternity.’ The court stated that any challenge to paternity after the dissolution must be brought under Fla.Fam.L.R.P. 12.540 and Fla.R.Civ.P. 1.540. The court disapproved DeRico v. Wilson, 714 So.2d 623 (Fla. 5th DCA 1998), which had affirmed an order relieving the former husband of his child support obligation for two children born of the marriage when paternity testing two years after the dissolution showed he was not the father.

In Anderson v. Anderson, 845 So.2d 870 (Fla. 2003), the former husband petitioned for relief from judgment under Rule 12.540 and alleged fraud on the wife’s part in telling him that the child born during the marriage was his. The court denied his petition, finding that he did not have any new information post-dissolution on which to base his claim. Given this holding, the practitioner may wish to include language in the petition or counterpetition for dissolution of marriage that may be used as a basis for demonstrating fraud. For example, the standard allegation, ‘There are three minor children born of the marriage,’ could be changed to, ‘There are three minor children born of the marriage who are the biological offspring of Husband and Wife.’ If the wife admitted this allegation when she knew it to be untruthful, the husband might have laid a foundation for a later finding of fraud. Regardless, any husband who has any doubt of the paternity of the children born! during the marriage should be told that if he fails to raise the issue before the final judgment of dissolution of marriage, he may be estopped from raising it later, even if the children are conclusively established not to be his. The decision to pursue paternity testing is a personal one because of the potential impact on the husband’s and children’s lives. However, the legal consequences of testing versus not testing should be made clear to the client.

Just as the husband may be barred from raising the issue of paternity after a final judgment of dissolution of marriage, the wife may be estopped from arguing that the husband is not the child’s father during the dissolution proceedings. In Marshek v. Marshek, 599 So.2d 175 (Fla. 1st DCA 1992), the court held that the husband could not be ordered to submit to a paternity test for a child born of the marriage until the court resolved his claim that the wife was stopped from contesting paternity.

F.S. 742.18, enacted in 2006, creates a procedure for a man to petition the court to disestablish paternity and terminate a child support obligation if the man is not the biological father of the child. F.S. 742.18(1) provides the requirements for the petition and F.S. 742.18(2) lists findings the court is required to make. The duty to pay support may not be suspended while the petition is pending. F.S. 742.18(6). See 12.54 of this manual for further discussion.