FAMILY LAW

Beyond the Basics

PATERNITY • §744.301(1): “The mother of a child born out of wedlock is the natural

guardian of the child and is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise.”

• Shared Parental Responsibility does not apply • No Pick-Up Orders • No Custodial Rights to the Father, whatsoever (even in a Domestic Violence

setting)

PATERNITY CONTINUED

• Paternity is established under Ch. § 742 if:• Adjudicatory hearing • Affidavit acknowledging paternity or a stipulation of paternity is executed by

both parties and filed with the clerk of court • A notarized, voluntary acknowledgement of paternity, or a voluntary

acknowledgment of paternity. • A paternity is adjudicated by the Department of Revenue as provided in Fla Stat.

409.256• 60 Days to Rescind. After that it is “FINAL.”

• No further proceedings under chapter 742 were required, or permitted, to establish [his] paternity

BIRTH CERTIFICATE FATHER’S RIGHTS • As long as you have also acted like a father:

All rights of a natural guardian; Medical decisions; Government benefits; Settle lawsuits for the child; and, Right to voluntarily confer temporary custody rights to extended family. (Mohorn )

• But!!•A Birth Certificate Father cannot defeat Mother’s custody rights

• When Mom vs. Dad, Dad cannot defeat Mom’s custody rights until there is a Court order.

A “challenger” can attempt to rebut this rebuttable presumption of Paternity by Fraud, Duress or Material Mistake of Fact. Flores v. Sanchez, 137 So.3d 1104 (Fla. 3d DCA 2014).

SOUNDS EASY ENOUGHWhat if the mother was married when the child was born, but dad’s someone else?

The law presumes that the husband of a biological mother is the child’s legal father, but it can be overcome when there is a clear and compelling reason based primarily on the child’s best interests.

LORD MANSFIELD’S RULE

This is the foundation of the Presumption of Legitimacy

An evidentiary rule pertaining to married parents re: their offspring

Privette also says: “It is conceivable that a man who has established a loving, caring relationship of some years' duration with his legal child later will prove not to be the biological father. Where this is so, it seldom will be in the children's best interests to wrench them away from their legal fathers and judicially declare that they now must regard strangers as their fathers. The law does not require such cruelty toward children.”

“The child should not risk being stigmatized without reason.”

PRIVETTE• “The child's legally recognized father likewise has an unmistakable interest in

maintaining the relationship with his child unimpugned, such that his opposition to the blood test and reasons for so objecting would be relevant evidence in determining the child's best interests.”

• In Privette, the Florida Supreme Court held that the trial court must find that a child’s best interest will be better served by ordering a blood test, even if the blood test later proves the child’s “factually illegitimacy.” • The application of Privette is limited to those instances where a child faces the threat of

being declared illegitimate and the “legal father” faces the threat of losing parental rights where he is seeking to maintain.

• In a Privette hearing the movant has the burden of providing clear and convincing evidence to the requisite factors. Even if the legal father is proven to not be the biological father.

SO WHO CAN BRING A PATERNITY ACTION §742.011

• Any woman who is pregnant or has a child • Any man who has reason to believe he is the father of a child • Any child• Legal fathers are indispensable parties in actions on behalf of mothers against putative fathers.• A putative father does not have standing to seek to establish paternity of a child where the child

was born to an intact marriage, and where the married woman and her husband object to the paternity action.

• The courts are that serious about legitimacy. • § 742.18 provides a mechanism under which a man may disestablish his paternity

and avoid further support obligations. Remember differentiate, the absence of another putative father who is willing to “step in” and establish paternity cannot preclude the petitioner from an order disestablishing paternity.

SO WHAT ABOUT DNA

If Paternity is admitted, you do not need it.

When in doubt, file a Motion!

Is there ever a reason to deny this motion?

Fla. Stat. § 742.12 (1) –follow the statute

§ 742.12

• The Court may order scientific tests that are generally acceptable within the scientific community to show a probability of paternity.

• Filed with the Court within10 days for a written objection, or admissible.

• If the testing rules out paternity, case must be dismissed. • Before blood testing can be ordered in cases in which a presumption of

legitimacy is raised by a putative father, the trial court is required to hear arguments from the parties, including the legal father, if he wishes to appear, and a GAL appointed to represent the child.

NO Constructive Service allowed in paternity actions.The legal father may be served constructively in a paternity action.

JURISDICTION, SERVICE, AND PROCEDURE• Jurisdiction over the paternity action comes first, not the UCCJEA. Therefore, even if Florida

is the home state of the child, if paternity has not been established, and the sex act occurred in another state, you do not have PJ over the Respondent.

• If custody is at issue then the UCCJEA controls.

• If the Respondent was served outside of Florida• Does the petition make allegations long arm in nature? • Specifically “The Petitioner and Respondent engaged in an act of sexual intercourse

within the State of Florida which may have resulted in the conception of the child”.• Sufficient minimal contacts

• Ex. Spring break babies

• If language not included Petition must be amended and Respondent re-served.

DEFAULT TIME-SHARING AND SOLE PARENTAL RESPONSIBILITY IN

PATERNITY CASES • Florida Statutes Section 742.031(2).

• If a judgment of paternity contains only a child support award with no parenting plan or time sharing schedule, the oblige parent shall receive all of the time sharing and sole parental responsibility without prejudice to the obligor parent.

DISESTABLISHMENT OF PATERNITY AND TERMINATION OF CHILD SUPPORT

• A man may file based upon: • Newly discovered evidence relating to the paternity since the initial paternity

determination or establishment of child support obligation.• Scientific testing results within 90 days prior to filing of Petition or an affidavit executed

by the Petitioner stating he did not have access to the child for scientific testing prior to filing.

• Affidavit executed by Petitioner stating he is current on all child support payments or that he has substantially complied with his child support obligation and that any delinquency in the obligation arose from his inability for just cause to pay.

• The legitimacy of a child born during wedlock shall not be affected by the granting of the Petition to disestablish paternity § 742.18(9)

WHEN IS THE COURT PROHIBITED FROM DISESTABLISHMENT?

• The court shall not set aside a paternity if petitioner: • Married the mother as the reputed father and voluntarily assumed the parental

obligation and pay child support• Acknowledged paternity in a sworn statement• Consented to be named as the child’s bio father on the birth certificate • Voluntarily promised in writing to support the child and was required to support the

child based on that promise • Received written notice from any state agency or any court directing him to submit to

scientific testing which he disregarded • Signed a voluntary acknowledgement of paternity provided in Fla Stat. § 742.10(4). Fla.

Stat. §742.18(3).

LIMITATIONS AND DEFENSES

• SOL• Equitable Estoppel• Estoppel/Res Judicata• Laches. • Presumption of legitimacy • Best interest of the child

DOR • Deal with child support!• Administrative Orders

• A request for custody or visitation MAY NOT be filed in a DOR action. • If a DOR action is filed first and a paternity action is filed second, they are NOT

consolidated or transferred into one another. • Some DOR judgments do not make a finding of paternity and therefore, there is no

adjudication of paternity for the filing of a petition for timesharing. • When DOR is a party, DOR remains in the style of the case. If DOR comes into a

paternity case, they are NOT added to the style. • DOR cannot order DNA testing in a case filed under the administrative support

statute (§409.256(2)(b)). It can only do so in a case filed under the administrative paternity procedure.

CHILD SUPPORT

GUIDELINES

• Presumptive starting place • Net Based• Court may deviate up or down 5% with

no findings • Court may deviate more than 5% with

written findings based upon statutory criteria. Lancaster v Lancaster, 228 So. 3d 1197 (Fla. 1st DCA 2017)

• May be applied retroactively• Florida Guidelines use an “Income Shares

Model”

•Guidelines are based upon net income of the

parties

•First, determine gross income and then determine allowable deductions

WHAT IS INCLUDED IN GROSS INCOME?

FINDINGS OF FACT REQUIRED Income Impute Income. Computation of Arrearages. Ability to Pay Child Support Arrearages. Social Security Life Insurance Order to Secure Child Support Private School. Not Dividing Health Care Pro Rata. Deviating from Guideline Support. Disestablishment of Paternity to End Support.

Fla. R. Fam. P. 12.285(e)(1) requires each party to file a financial affidavit in every case seeking a child support award, and this requirement cannot be waived!

DEVIATION FACTORS § 61.30(11)(A)

Extraordinary medical, psychological, and educational or dental expenses.

Independent income of the child, not to include money received by child from supplemental security income.

Payment of support for parent.

Seasonal variations in income/expenses

Age of child; older children have greater needs.

Special needs of child.ie: The costs of respite care, or alternate child caregiver expenses, for a disabled child. Koslowski v. Koslowski, 78 So.3d 642 (Fla. 1st DCA 2012).

Total available assets of the parents and child.

Impact of IRS child and dependent care tax credits, earned income tax credit, and dependency exemption.

When the child support guidelines would require

payment of more than 55% of gross income resulting

from single court order. Alois v. Alois, 937 So.2d 171

(Fla. 4th DCA 2006). 

If a particular parenting plan provides for a child to spend a significant amount

of time, but less than 20% of the overnights, with one parent which reduces the

financial expenditures of the other parent, a deviation is

in order.

Any other adjustment that is needed to achieve an

equitable result which may include, but not be limited

to, a reasonable and necessary existing expense or debt. Pope v. Langowski,

115 So.3d 1076 (Fla. 4th DCA 2013

BONUSES AND OVERTIME•Bonuses included if regular and consistent. Parry v Parry. 933 So. 2d 9 (Fla. 2nd DCA 2006).

•Even when discretionary with the employer and based upon gross profits. Drew v. Drew, 27 So. 3d 802 (Fla. 2nd DCA 2010).

•When regular and continuous but vary, it may be averaged over an appropriate time period. ie: three years

•If a bonus is not recurring and is a one-time event, then it should not be included.

•Regular overtime should be included for computing child support. Bulter v Brester, 629 So. 2d 1092 (Fla. 4th DCA 1994)

•Regular secondary employment from part time job should be included in income.

•BUT

•Mandatory overtime due ex. Hurricane Andrew thatsshort lived and temporary and should not be considered income.

•In an upward modification secondary income should not be considered if it is obtained primarily to support subsequent children.

BUSINESS INCOME

•Gross receipts - ordinary and necessary business expenses required to produce such income.•Court must look further than tax returns and balance sheets.

•Burden on the shareholder/parent to show whether properly retained for business purposes or impermissibly retained. •1) look to access or control (sole shareholder?) •2) limitation set forth in 607.064013 governing corporation distributions •3) purposes for which the income has been retained.

•Conclusion… ask an expert unless you’re into that “math” stuff

YES THEY CALCULATE THAT•Parent’s disability including SSDI and VA disability benefits are included in gross income. •The benefit the child receives as a result of the parent's disability is also attributable to the parent as income but credited against the disabled parent’s support obligation. •VA disability benefits a child receives are attributable to the parent's income and the parent’s veteran disability income is attributable as income. Again the child’s portion is then backed out. •SSI benefits due to a parent’s retirement are included in the parent’s income. The amount paid to the child is included in the parent’s income and then credited back to the child support obligation. •Social Security benefits for the child’s disability are not included in parent’s income and should not serve as a basis to reduce the parent’s obligation.

IMPUTATION OF INCOME § 61.30(2)(B) •Monthly income shall be imputed to an unemployed or underemployed parent if the unemployment or underemployment is voluntary.

•A finding of physical or mental incapacity or other circumstances over which the parent has no control is not considered voluntary.

•Imputation of income is a two step process. •1. Is the unemployment or underemployment is voluntary?•2. whether any subsequent unemployment or underemployment resulted from pursuit of the spouse’s own interests, or through less than diligent and bona fide efforts.

•Burden of Proof is on the party seeking to impute income.

SITUATIONS SUPPORTING IMPUTATION

•2019 case: •Horowitz v. Horowitz, 273 Zso. 3d 263 (Fla. 2d DCA 2019)

•Early Retirement without proof of medical testimony •Being fired from employment as the result of voluntary actions •Voluntarily quitting•Voluntary unemployment•Willfully earning less and having the capacity to earn more by use of best efforts.

SITUATIONS SUPPORTING IMPUTATION

•If no participation, the court can impute median income based on the rebuttable presumption that the parent has income.

•Effective 2010, §61.30, Fla. Stat. provides that if a parent’s income is unavailable, or if a parent fails to participate in a child support proceeding or fails to supply adequate financial information in a child support proceeding, income shall automatically be imputed to the parent.

INCARCERATED PARENTS

•Disagreement between Districts – 1st and 2nd aligned and the 4th and 5th aligned • 1st trial court need not impute income to an incarcerated father seeking to modify child support as a result of his unemployment due to incarceration.

•2nd Because no showing was made that the incarcerated parent had the capacity to earn the amount of income imputed to him while incarcerated, the imputation of income was reversed. Waugh v. Waugh, 679 So.2d 1 (Fla. 2d DCA 1996)

INCARCERATED PARENTS•4th -Income should be imputed to the father so that arrearages could accumulate until he is able to earn an income.

•5th Certified conflict with the First District in Wilkerson v. Wilkerson, 220 So. 3d 480 (Fla. 5th DCA 2017),and affirmed the trial court’s imputation of income to an incarcerated parent in an initial child support proceeding. The 5th found that, “an individual’s actions that lead to incarceration are voluntary for purposes of the chapter 61.”

SPECIAL CIRCUMSTANCES

• Educational Enhancement • Starting a business

• Gillette v. Gillette, 226 So. 3d 958 (Fla. 4th DCA 2017). A good case to reference when a payor goes into business for him/herself after being terminated. Again a two-step process.

• 1. The court must conclude if the termination of income was voluntary.

• 2. The court must determine whether the subsequent unemployment resulted from the spouse’s pursuit of his own interest or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formally received.

WHEN IS IMPUTATION NOT ALLOWED?•The court may not impute income based upon:

•Income records that are more than 5 years old at the time of the hearing or trial at which imputation is sought; or •Income at a level that a party has never earned in the past, unless recently degreed, licensed, certified, relicensed, or recertified and thus qualified for, subject to geographic location, with due consideration of the parties’ existing time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan or relevant order. §61.30(2)(b)(2), Fla. Stat.

WHEN IS IMPUTATION NOT ALLOWED?

• Wife’s lack of interest in retaking the Florida Bar exam and working as an attorney was legally irrelevant to trial court’s calculation of the wife’s imputed income for purposes of alimony and child support. The wife had not practiced law in 16 years and did not pass the Bar exam when she originally took it. Shafer v. Shafer, 45 So.3d 494 (Fla. 4th DCA 2010).

• Same goes for ruling solely on past earning power.

• Niekamp v. Niekamp, 173 So. 3d 168 (Fla. 2d DCA 2015) appellate court reversed trial court’s finding that parent who had history of mental health issues and had not worked in 10 years was voluntary for purposes of imputing income. –court’s gone further

• The court may refuse to impute income to a parent if the court finds it is necessary for that parent to stay home with the child that is the subject of the child support order. Undercufferv. Undercuffer, 798 So. 2d 867, 869 (Fla. 4th DCA 2001).

WHEN IS IMPUTATION NOT ALLOWED?•Court must still consider best efforts to find subsequent employment. Even if unemployment voluntary, must still have findings as to second step and the burden is on the party seeking to impute income. Heard v. Perales, 189 So.3d 834 (Fla. 4th DCA 2015); Dottaviano v. Dottaviano, 170 So.3d 98 (Fla. 5th DCA 2015) (imputation reversed where trial court failed to address that she was trying to find work but could not).

OTHER COURT ORDERED SUPPORT •Support actually paid for other children *if prior order*•If a court order for payment of child support for a prior child is not in place, the court may consider the amount of child support paid as deviation from guidelines, but not as a deduction from gross income. Hutslaw v. Lappin, 652 So.2d 432 (Fla. 1st DCA 1995). •If the parent with the support obligation has other children residing with him/her and is supporting those children in kind, then there is no entitlement to a deduction from gross income for support, § 61.30(3)(f), Fla. Stat. However, the court may allow an adjustment and deviation in order to achieve an equitable result, Ogando v. Munoz, 962 So.2d 957 (Fla. 3d DCA 2007).

RETROACTIVE SUPPORT•Support can be to the date when the parents did not reside together in the same household, but not to exceed 24 months preceding the filing of the petition.

•The court is to consider the following:

•The guideline schedule in effect at the time of the hearing shall control, unless the obligor demonstrates that the actual income during the retroactive period was less.

•All actual payments made for the benefit of the child during the retroactive period. Gillisleev. Florida Dep’t of Revenue OBO Hamilton, 150 So.3d 294 (Fla. 1st DCA 2014).

•Installment payment plans for the arrearage.

ARREARAGES• Accrue Interest

• From the date the child support is due until the date of the arrearage judgment, along with interest that accrues on the arrearage judgment itself.

• Trial court may decline to enforce past due child support obligation when obligor proves an equitable defense

TERMINATION OF SUPPORT

•Child support may be extended beyond a child’s 18th birthday in two instances: •Mental or Physical incapacity beginning prior to 18•If the dependent is between ages 18 and 19 and still in high school performing in good faith with a reasonable expectation of graduation before age 19 or is otherwise agreed to by the parties.

MODIFICATIONS • “Modification” means a child-custody determination that changes, replaces,

supersedes, or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination. §61.503(11), Fla.Stat. (2019)

•2019 has shown us again in Johansson v. Johansson, 270 So. 3d 426 (Fla. 4th DCA 2019)

•Findings Required Even if a Petition for Modification Denied

PROCEDURE/BASICS A party initiates a proceeding to modify a family law final judgment through a supplemental petition. Fla. Fam. L.R.P. 12.110. Courts can’t decide issues not pled and noticed, or the order denies fundamental due process.

Neumann v. Neumann, 857 So.2d 372 (Fla. 1st DCA 2003).

• Every petition for modification of child support shall be accompanied by an affidavit which shows the party's income, allowable deductions, and net income and servedat the same time as the petition. §61.30(14) Fla.Stat. (2019)

• A financial affidavit must be served within 45-days of service of the initial pleading in supplemental proceedings. Fla. Fam. L. R. P. 12.285(b)

MODIFICATION• Child support

• Child support is always subject to modification upon a showing of changed circumstances• Alimony

• Whether or not a final order to pay alimony is modifiable depends on whether the order based upon an agreement, and if so, what the agreement provides or, what type of alimony the obligor seeks to modify.

• Temporary orders• Temporary support and temporary parenting orders are not final and are not subject to res judicata.

• Without a showing of substantial change of circumstances the court may modify, vacate, or set aside a temporary support order or upon entering a final order in a proceeding §61.14(11)(a), Fla. Stat.

• Res judicata is not applicable to temporary custody orders. No requirement of a substantial change or circumstances required to modify a temporary custody order.

DOR CASES AND DV INJUNCTIONS

• Fla. Stat. §409.2564 grants standing to the DOR to file petitions to modify support obligations

• Modification of Domestic Violence Injunctions• Fla. Stat. §741.30 provides for the establishment of a parenting plan and support on the

same basis as provided by Ch. 61, Florida Statutes. However, §741.30(6)(c), Fla. Stat. provides either party may move at any time to modify or dissolve the injunction. No specific allegations are required.

WHEN TIME SHARING IS NOT EXERCISED• Fla. Stat. §61.30(11)(e) allows for a modification of a child support award based on one

parent’s failure to exercise timesharing, retroactively to the date the parent failed to regularly exercise time sharing.

• As long as the parent’s failure to regularly exercise the time sharing was not caused by the other parent it shall be deemed a substantial change of circumstances modification.

• Cannot be based on assumption: • If the facts indicated at the outset that the substantial time would not be used, then the

child support should not be adjusted. Christensen v. Christensen, 147 So.3d 118 (Fla. 1st DCA Aug. 18, 2014).

SUBSTANTIAL CONTACT ADJUSTMENT• A substantial amount of time is at least 20% of the overnights of the year.• Parents can expressly agree to waive the right for an adjustment based on

substantial time sharing • Child support guidelines worksheet must set forth the correct number of overnights,

as awarded in the parenting plan, unless the order contains findings of fact supporting a deviation.

PARENTING AND TIME SHARING

PARENTING PLAN• In creating the plan, all circumstances between the parents, including their historic

relationship, domestic violence, and all other factors must be taken into consideration. • Must be:

• Developed and agreed to by parents and subject to court approval • Established by the court if parents cannot agree • Address all jurisdictional issues

• Court can approve, grant or modify a parenting plan if a child’s not in Florida if it appears child removed from Florida to prevent court’s approval, creation or modification.

TIME SHARING • Florida Statutes Section 61.046 (23)• A timetable that must be included in the PP that specifies the time, including

overnights and holidays that a minor child will spend with each parent. • No presumption under current Florida law for or against any particular T-S schedule,

including one calling for fifty-fifty division of time. Instead the sole requirement is the T-S schedule is set in accordance with BIC.

• A trial court cannot delegate authority for establishing or modifying a T-S schedule.

“A reasonable timesharing schedule based on the parent’s

individual circumstances must be created based on the exercise of

the court’s discretion.”

2019 CASE LAW

• It is improper to use a prospective based analysis when making parenting/timesharing determinations, Cappola v. Cappola, 280 So. 3d 102 (Fla. 4th DCA 2019)

• The trial court is not bound by an agreement between parents regarding parental responsibility or timesharing, Cappola v. Cappola, 280 So. 3d 102 (Fla. 4th DCA 2019)

• The phrase “Environment” referenced in §61.13(3)(d) does not mean the physical structure where the child lives, Walker v. Walker, 274 So. 3d 1156 (Fla. 2d DCA 2019)

• It is error to require a party to share the costs of extracurricular activities without the consent of that party, Walker v. Walker, 274 So. 3d 1156 (Fla. 2d DCA 2019)

• It is error to require one party to provide all transportation for timesharing Miller v. Miller, 277 So. 3d 725 (Fla. 1st DCA 2019)

WE ALL KNOW THE BASICS• Shared Parental Responsibility

• Parents retain full parental rights and responsibility with respect to their children and major decision making.

• Ultimate decision making responsibility• Consider expressed desires of the parents• Grant ultimate responsibility over specific aspects of child welfare • Divide responsibilities between the parties based on BIC • Areas of responsibility may include

• Education • Healthcare• Anything else

• The court can award 1 parent ultimate decision making authority over specific matters where parties cannot agree, but those specific decisions must be listed in the Final Judgment.

• **It is impermissible to award ultimate decision making responsibility on all issues.

SOLE PARENTAL RESPONSIBILITY 61.13(C)2B

• Such an award requires a specific finding that shared parental responsibility would be detrimental to the child.

• The court may order sole parental responsibility with or without time sharing to the other parent.

• BIC standard via UCCJEA• Following the Pierre v. Bueven, 276 So. 3d 917 (Fla. 3d DCA 2019) and other cases.

BEST INTEREST STANDARDPARENTAL RESPONSIBILITY AND TIME SHARING

• Modification of parenting plans and time sharing requires a substantial, material and unanticipated change of circumstances.

• Two part test • Circumstances have substantially and materially changed since the custody determination • The child’s best interest justify the change

• BIC determined by evaluation of all factors enumerated in Florida Statute section 61.13(a) through (t) affecting the welfare and interest of particular child and circumstances of the family.

•Reno v. Reno, 2019 WL 4869755 (Fla. 1st DCA 2019) •Great Case Related as to What is Required for a Compulsory Mental Examination •Burden is very high and the party’s mental condition must be more than merely relevant to the proceedings

MOVING FORWARD• The court can provide a path with steps to restoration/modification. The court

cannot engage in a prospective-based analysis when modifying a time sharing schedule that attempts to anticipate what the future BIC will be.

FAILURE TO HONOR TIME-SHARING WITHOUT PROPER CAUSE

• Florida Statutes Section 61.13(4)(c) • Remedies available include:

• Make-up T-S to compensate for lost time. • Expeditious. • In a manner in BIC.

• Non-compliant parent (i.e. did not permit T-S or did not exercise T-S) may be ordered to: • Pay reasonable court costs and attorney’s fees. • Parenting course. • Community service (provided doesn’t interfere with child’s welfare)• Impose financial burden on non-compliant parent of promoting frequent and continuing

contact when non-compliant parent and child reside 60 miles or more from compliant parent.

• Modify PP at request of compliant parent if in BIC. • Any other reasonable sanction.

RELOCATION

• §61.13001 (Oct. 2009)• The relocation statute anticipates the court will modify timesharing if a relocation is

granted.• Change must be at least 50 miles from that residence, AND for at least 60 consecutive

days.• Hollis v. Hollis, 276 So. 3d 77 (Fla. 2d DCA 2019) Relocation of 47 miles is not

sufficient to justify a modification of timesharing.• Section 61.13001 is now defined to mean a change in the location of the principal residence

of a parent to a new location at least fifty miles away from his or her principal place of residence at the time of the last order establishing time-sharing.

FORMS: FLA. FAM. L.R.P. 12.950(A)-(J)

• 12.950 • (a) AGREEMENT FOR RELOCATION WITH MINOR CHILD(REN)• (b) MOTION FOR ORDER PERMITTING RELOCATION BY AGREEMENT • (c) PETITION FOR DISSOLUTION OF MARRIAGE WITH DEPENDENT OR MINOR

CHILD(REN) AND RELOCATION• (d) SUPPLEMENTAL PETITION TO PERMIT RELOCATION WITH CHILD(REN)• (e) MOTION FOR TEMPORARY ORDER GRANTING RELOCATION• (f) TEMPORARY ORDER GRANTING/DENYING RELOCATION• (g) MOTION FOR CIVIL CONTEMPT AND/OR RETURN OF CHILDREN• (h) ORDER ON MOTION FOR CIVIL CONTEMPT FOR RELOCATION AND/OR RETURN OF

CHILD(REN)• (i) FINAL JUDGMENT/SUPPLEMENTAL FINAL JUDGMENT GRANTING RELOCATION• (j) FINAL JUDGMENT/SUPPLEMENTAL FINAL JUDGMENT DENYING RELOCATION

RELOCATION BY AGREEMENT

• Written and signed by both parties

• Define access or time-sharing schedule

• Describe transportation arrangements

If a case has been filed, parties MUST have agreement ratified by court order.

AND

AND

RELOCATION WITHOUT AGREEMENT• MUST be verified & contain:

• Location & physical address of new residence• Mailing address• Home telephone number• Date of intended / proposed move • Statement of reasons / attach a written job offer  • Proposed substitute access / time sharing & Transportation 

• Warning Statement: Need to file and serve Objection within 20 days after service

CONSEQUENCES TO PETITIONER FOR FAILURE TO COMPLY

• Contempt• Factor in adjudicating or modifying time sharing • Factor in ultimate determination of relocation • Basis to Order immediate return of child-temporary or permanent• Assessment of fees and costs, including interim travel expenses and ultimate

expenses to secure return of the child.

OBJECTION TO PETITION TO RELOCATE

• Must be timely filed—20 days after service; and • Must be verified; and • Must contain detailed:

• Specific factual reasons for prohibiting relocation • Personal statement of amount of involvement in child’s life.

TEMPORARY HEARING ON RELOCATION

• Once a party files a timely response objecting to the relocation, there must be at least a temporary hearing before relocation occurs.

• It is not a pre-condition to a temporary hearing before relocation that the objection be “flawless”. Rather, once an objection is filed timely, a temporary hearing is required before relocation is granted.

• If not, then the objecting party must show “good cause” why the objection was untimely.• Statutory presumption that relocation is in the BIC does not trigger when an untimely

objection is filed and there is “good cause” why it was untimely

CONSEQUENCES• Waives right to object• Waives right to evidentiary hearing • Creates statutory presumption that relocation is in the BIC • Court can proceed to enter final judgment and adopt proposed time sharing

schedule and transportation arrangement. (Absent good cause)• Absent good cause, the evidentiary hearing on temporary relocation must occur no later

than 30 days after motion is filed.• Absent good cause, the nonjury trial must occur no later than 90 days after the

notice is filed

BURDEN OF PROOF • The petitioner-parent has the burden of proof by a preponderance of the evidence that

relocation is in the BIC.• If that burden of proof is met, the burden shifts to the non-relocating parent to show by the

preponderance of the evidence that the proposed relocation is not in the BIC.

• The court MUST consider statutory factors as to the BIC under: 61.13(3) AND 61.13001(7).• Determination must be supported by competent, substantial evidence.

• Not blanket neutrality as to the stat. factors.• BIC cannot be prospective-based analysis either

OTHER CONSIDERATIONS

• Requiring one parent cannot pay ALL transportation expenses to effectuate time sharing without findings concerning each party’s financial means is error.

• The court shall consider ALL statutory factors under §61.13001(7)(a-k). • (k)

• Any other factor affecting the BIC as set forth in §61.13.• The court shall consider ALL statutory factors under §61.13(3)(a-t)

• (t)• Any other factor that is relevant to the determination of a specific parenting plan,

including the time sharing schedule.

UCCJEA• The UCCJEA is a uniform act adopted by all US states except MA with the goal of

harmonizing custody, visitation, time sharing, and parental responsibility due to different states having different approaches to these issues.

• Florida adopted the UCCJEA in Ch. 61 sections 61.501-61.542 of the Florida Statutes. The UCCJEA is a jurisdictional act that controls custody disputes.

UCCJEAYou’re welcome

JURISDICTION AND VENUE • Jurisdiction under the UCCJEA is based on the location of the child, and the types of

connections the child has with the state. • Child’s “Home State” §61.514 under the UCCJEA means the state in which a child lived with

the parent or a person acting as parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding.

• When the child is less than 6 months of age, the term means where the child lived from birth.

• A state can still be considered the home state if the child resided there for at least 6 months is now absent from the state AND a parent still lives in the state.

• A period of temporary absence of any of the mentioned persons is part of the period §61.503(7), Fla. Stat.

WHEN A CUSTODY DETERMINATIONS ALREADY MADE

• The state that made the initial custody determination retains EXCLUSIVE, CONTINUING, JURISDICTION unless and until certain requirements are met. Florida Statute §61.515.

• Child custody cannot be modified unless the state with exclusive, continuing, jurisdiction relinquishes that status. Florida Statute 61.516.

• To modify, the parent must show a substantial, material, and unanticipated change in circumstances AND the change must be in the child’s best interest.

LET’S PRACTICE • So…

• Does Florida have to enforce a Colorado order providing for grandparent visitation, which is contrary to Florida public policy?

• In short, Yes! Full Faith and Credit Clause

LONG ANSWER• The Florida Supreme Court resolved an express conflict in Florida when a foreign judgment

violates Florida public policy. The Mother argued a Colorado order providing for grandparent visitation was unenforceable as against Florida public policy because grandparent visitation violated the Florida Constitution. The Florida Supreme Court held that the PKPA (Parental Kidnapping Prevention Act) explicitly applies to a grandparent’s right to visitation of a child, and to the extent that the PKPA conflicts with Florida law, the PKPA controls under the Supremacy Clause of the United States Constitution. The Florida Supreme Court also held that a state may not elevate its own public policy over the policy behind a sister state’s judgment, thereby disregarding the Full Faith and Credit Clause. Ledoux-Nottingham v. Downs, 210 So.3d 1217 (Fla. 2017)

• In reaching its decision, the Florida Supreme Court noted that the PKPA was amended in 1998 to include any “visitation determination” in addition to “any custody determination.” The 1998 amendment also modified the definition of a “contestant”, from “a person, including a parent, who claims a right to custody of a child”, to “a person, including a parent or grandparent, who claims a right to custody or visitation of a child.” Moreover, to the extent that the PKPA conflicts with Florida law, the federal PKPA controls. Ledoux-Nottingham v. Downs, 210 So.3d 1217 (Fla. 2017)

DISSOLUTION OF MARRIAGE

WHAT WE ALREADY KNOW • “No fault” in Florida • In recent years, the category of people eligible for dissolution of marriage has

expanded to same-sex couples who have been recently provided the legal right to marry.

• No common law marriage

CURRENT ALIMONY LAWS • A court may grant alimony to either party, which may be:

• Bridge-the-gap; • Rehabilitative; • Durational; • Permanent;

• Any combination of these forms of alimony; • Temporary (during the pendency of the case). • Periodic payments; • Payments in lump sum; or• Both.  

• Starting point is always need and ability to pay.

AKA THE “D.I.E. F.A.C.T.O.R.S.” • In determining an alimony award, the court first makes specific factual

determinations whether either party has actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance. Fla. Stat. §61.08(2).

• Duration of Marriage • Income Available from All Sources • Earning Capacity, Vocational Skills, Etc.• Financial Resources • Age, Physical and Mental Condition • Contributions to the Marriage • Tax Treatment of Alimony • Other Factors Necessary to do Justice • Responsibilities Each Party will have for Children• Standard of Living

HOW IMPORTANT ARE THE “FINDINGS OF FACT”?

• It is reversible error for the trial court to fail to address these various factors in writing. Austin v. Austin, 12 So. 3d 314 (Fla. 2d DCA 2009); Hill v. Hooten, 776 So. 2d 1004 (Fla. 5th DCA 2001).

• Remember that conflict between the districts regarding preservation!! Some districts require motion for rehearing to Preserve Error related to the failure to make findings while rehearing is not required in other districts.

MOTIONS FOR REHEARING AND THE “PRESERVATION” RULE

• Prior to December 2018: A trend had emerged requiring that a party must move for rehearingwith the trial court regarding the trial court’s lack of factual findings to support its conclusions on alimony. Failure to do so would be deemed a failure by that party to preserve the issue for appellate review.

• 1st DCA, 3rd DCA, 4th DCA, 5th DCA• Currently there’s a conflict regarding the preservation rule:

• Engle v. Engle, (Fla. 2d DCA 2019), “We hold that the trial court’s failure to make specific factual findings that are required by statute as set forth in chapter 61 is reversible error regardless of whether the error was first raised in the trial court by means of a motion for rehearing.” Section 61.08(8).  

• Ultimately the court in Engle held: • “Such a preservation requirement is not supported by statute or rule of procedure”• “We fail to see why this special rule of preservation should be implemented in family law

proceedings when Florida courts routinely reverse errors that are apparent on the face of a judgment in other areas of the law without indicating that preservation by a motion for rehearing is required.”

FOUR TYPES OF AVAILABLE ALIMONY: §61.08(5)-(8):

• 1. Bridge-the Gap: to allow the party to make a transition from being married to being single.

• Designed to assist a party with legitimate identifiable short-term needs, and the length of an award may not exceed 2 years.

• 2. Rehabilitative: to assist a party in establishing the capacity for self support through either: • The redevelopment of previous skills or credentials; or  • The acquisition of education, training, or work experience necessary to develop

appropriate employment skills or credentials. • Can be awardable as a reimbursable amount in appropriate cases. See Horowitz v.

Horowitz, 273 So. 3d 263 (Fla. 2d DCA 2019) • 3. Durational: to provide a party with economic assistance for a set period of time following:

• Marriage of short or moderate duration or • Marriage of long duration if there is no ongoing need for support on a permanent basis. • Terminates upon the death of either party or upon the remarriage of the party receiving

alimony.

TYPES OF ALIMONY• 4. Permanent: to provide for the needs and necessities of life as they were established

during the marriage of the parties for a party who lacks the financial ability to meet his or her needs and necessities of life following a dissolution of marriage. [Compare to Canakarisv. Canakaris, 380 So. 2d 1182 (Fla. 1980)]

• May be awarded following a: • Long-duration marriage if appropriate; • Moderate duration if such an award is appropriate based upon clear and convincing

evidence after consideration of the factors set forth in subsection 61.08(2); or • Short-term marriage of short duration if there are written findings of exceptional

circumstances. • The court must include a finding that no other form of alimony is fair and reasonable

under the circumstances of the parties. • Terminates upon the death of either party or upon the remarriage of the party receiving

alimony. • There is a long standing rebuttable presumption that permanent alimony is appropriate

in long-term marriage.

LUMP SUM ALIMONY• Can be awarded in three instances:

• As an award of a non-alimony property interest • As a one-time award of support, or as support in a defined amount, when equity

requires it. • To ensure an equitable distribution of marital property, provided there is justification for

it and an ability to pay • Two requirements for a lump sum award:

• Necessary for support or for an equalizing payment. • If awarded for support, there must also exist “special circumstances” or a “special

necessity” to justify it.• Not subject to modification, and is not terminable upon a spouse’s remarriage or death. • The award becomes a vested property right to the recipient, subject to interest.

OTHER FORMS OF ALIMONY• Temporary Alimony:

• Paid after filing of a petition and before finalization of the case.• Trial judges have very broad discretion • Henerally not be disturbed absent compelling circumstances, such as:

• Where the award is clearly insufficient to meet the needs of the recipient, see Robbie v. Robbie, 591 So.2d 1006 (Fla. 4th DCA 1991);

• If a payor has a clear inability to pay the award, see Pedraja v. Garcia, 667 So.2d 461 (Fla. 4th DCA 1996).

• Nominal Alimony: • A form of permanent alimony paid in a very small amount, because a higher award is

not proper, but which preserves the court’s jurisdiction to make a higher award in the future.

OTHER FORMS OF ALIMONY• Retroactive Alimony:

• Credits or set-offs may be applied against a retroactive alimony obligation. • Requires a finding of need for retroactive alimony and an ability to pay.

• Life insurance/Security • The court may order any party ordered to pay alimony to purchase or maintain a life

insurance policy or a bond, or to otherwise secure such alimony award with any other assets which may be suitable for that purpose.

• Postnups, Prenupts, and other Contractual alimony • Alimony and child support unconnected with a dissolution of marriage

SO WHAT IS “NEED”?• A spouse must be unable to gain or regain means to earn enough income to meet

the standard of living established during the marriage. • Disparity in the parties’ income, alone, is not a justification for alimony. • The amount of alimony should be based on the standard of living last shared by the

parties during the marriage. Goodman v. Goodman, 797 So.2d 1282 (Fla. 4th DCA 2001).

• Alimony is to provide for the less wealthy spouse above bare subsistence levels, not to fund the enjoyment of every little luxury enjoyed before the divorce

WHAT IS “ABILITY TO PAY”? • Determination of ability to pay alimony is required as part of a trial court’s findings

under the statutory factors in Section 61.08(2). • Ability to pay alimony may be determined by net income, net worth, past earnings,

and the value of the parties’ capital assets.• Based after equitable distribution.• Where the parties are in virtually identical financial conditions with similar wage

earning capacity, there is no ability to pay.

MODIFICATION OF ALIMONY • §61.14(1) covers enforcement and modification of support, maintenance, of alimony

agreements or orders. • Important to note alimony can be modified retroactively to the date of the filing or as equity

requires, giving due regard to the changed circumstances or the financial ability of the parties or the child.

SUPPORTIVE RELATIONSHIPS

• The court may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides.

• The burden is on the obligor to prove by a preponderance of the evidence that a supportive relationship exists.

• Subsection 2.: When looking at an “alleged supportive relationship” between an obligee and a person who is not related by consanguinity or affinity and with whom the obligee resides , “the court shall elicit the nature and extent of the relationship in question.”

• Subsection 2. also contains 11 specific factors for the court to consider …. Please check at your leisure

ALIMONY UPON RETIREMENT• Holder v. Lopez, 274 So. 3d 518 (Fla. 1st DCA 2019) Great Case Examining a Pimm v. Pimm Alimony

Modification Starting point is always need and ability to pay. • A reasonable retirement does not constitute voluntary underemployment which allow the

imputation of income for a part-time job.• A party’s reasonable retirement can be considered as part of the total circumstances to determine ifa

change in circumstances exists to warrant a modification. • Payor’s age, health and motivation for retirement as well as the type of work the payor performs

and the age at which others engaged in that line of work normally retire. • 65 or later is considered “normal retirement age”

• A payor spouse now has a significant burden to show a voluntary retirement before age 65 as reasonable.

• Even at normal retirement age, the payor spouse should not be permitted to unilaterally choose voluntary retirement if this choice places the receiving spouse in peril of poverty.

CONTEMPT

TYPES

• Indirect Civil Contempt • Direct Civil Contempt• Indirect Criminal Contempt• Direct Criminal Contempt

• Direct• In the presence of the court

• Ex. failing to testify in response to a subpoena

• Indirect• Outside the presence of the court

• Ex. not paying child support or returning a child per a parenting plan

DUE PROCESS RIGHTS • Civil proceedings must:

• Meet fundamental fairness requirements• Notice and opportunity to be heard

• Order must be clear and unambiguous• 2 or 3 days is not enough notice

• No right to counsel if present ability to comply. • Family Law Rule of Procedure 12.615(b) spells out the due process requirements for

notice and time to prepare. Hart v. Hart, 44 Fla. L. Weekly D1908b (Fla. 3d DCA 2019) • The court must have jurisdiction

BURDEN OF PROOF• On Movant to show prior order existed and failure to comply. • Burden shifts to defending party to show inability to pay

• Ex. If court finds willful violation and incarceration appropriate, there must be a separate, affirmative finding of present ability to pay purge amount. Albright v. Albright, 788 So. 2d 1125 (Fla. 4th DCA 2001)

• If incarceration or fine is ordered, then Order must contain a purge provision, otherwise you are transforming a civil proceeding to a criminal one without due process safeguards. Parisi v. Broward Cty, 768 So. 2d 359 (Fla. 2000)

• A contemnor who does not have the financial means to purge may not be incarcerated • The conditional nature of the penalty renders the relief civil in nature because the contemnor

can end the sentence immediately by doing what he or she had previously refused to do. The Florida Bar v. Taylor, 648 So. 2d 709 (Fla. 1995).

FINDINGS • Prior order of support was entered • Contemnor failed to pay all or part of support ordered• There’s present ability to pay • Willful refusal to comply with the current order• Recital of facts upon which these findings are based• If court grants the motion, court may impose sanctions to obtain compliance,

including incarceration, attorney’s fees, suit money, costs, compensatory or coercive fines or any other coercive sanction or relief by law, provided order includes purgeprovision

• Order must contain separate affirmative finding that contemnor has the present ability to pay a purge and factual basis for that finding

CIVIL CONTEMPT IN SUPPORT MATTERS• It is presumed by the existence of the prior order that respondent has ability to

comply • May not issue a writ of arrest and bodily attachment for anticipated future

noncompliance as civil contempt orders may not provide for incarceration based on “future, anticipated noncompliance with court’s periodic support order.”

GENERAL REMEDIES • Attorney’s fees • Liens against property • Interest• Income deduction orders• Garnishment• Arrearages• Statutory Sanction for failure to pay child support

FAMILY LAW RULE OF PROCEDURE 12.570(C)

• Family Law Rule of Procedure 12.570(c) • Allows trial courts to use contempt powers to enforce court orders on a person to

perform an act other than the payment of money.• Sign a title• Sign a lease• Sign a deed• Sign a transfer document• Sign a mortgage

IN CONCLUSION