In Florida, What is the Time Limit to Set a Hearing on a Motion to Dismiss or on Any Other Motion in a Civil Action?

Question:
In Florida, What is the Time Limit to Set a Hearing on a Motion to Dismiss or on Any Other Motion in a Civil Action?

If a Pro Se Defendant files a Motion to Dismiss; or if either Party files any other Motion in a Civil Action, what is the time limit from when the Motion is filed to the time that a Hearing must be set by either Party on the Motion before it becomes invalid? Furthermore, is the answer to this question stated anywhere in the Florida Rules of Civil Procedure?

Joseph Gufford
I agree with some of the other commentators on this question. There is no real time limit to call up Motion to Dismiss. Even though the Defendant filed it, I would suggest that it be called up for hearing regardless of whom filed the same. If not, the case will just sit out there in perpetuity and will eventually be dismissed for lack of prosecution.

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My Girlfriend Violated Felony Probation and Took Our Kid Out of State

Question:

What can I do if my girlfriend violated felony probation took our 3yr old and went to a different state no custody order?
Because of her warrant she lost her disability checks and all benefits for 3yr old my ex is also HIV & HEP C positive because of warrant lost access to her HIV meds my 3yr old and I are negative for HIV & HEP C I am birth father and I am on the birth certificate

Joseph Gufford:
You need to file a Paternity/Parental Responsibility action coupled with an Emergency Motion for the Return of the Child. I would also advise law enforcement and DCF of the situation.

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What is Sole Parental Responsibility?

mother-and-son

Question:

Why would a court award “Sole Parental Responsibility”? What are Florida Statutes governing this?

Wife alleges I have psychological and substance abuse issues that prevent the possibility of shared parenting. I don’t but I certainly need to know what a judge considers in making this decision…

Yes I am ProSe no money… she ran me out long ago.

Family Law Attorney Joseph Gufford Stuart, Florida

The pertinent statute is 61.13. I have added a link to this answer that should give you more insight. Sole Parental Responsibility is very much the exception in Florida and is generally only ordered in cases where one parent is “unfit” to share in the parenting of the child. It is necessary, before sole responsibility is given to one parent, that the court determine that shared responsibility would be detrimental to the child. The statutory law and the case law on the subject states that the Court must find that shared parental responsibility would be detrimental to the best interests of the child . If the court determines that shared parental responsibility would be detrimental to the child, it may order sole parental responsibility. There are also statutory reasons for a Court to Order Sole Parental Responsibility.

In any event, simply having psychological problems and/or substance abuse problems in the past, depending upon the severity of course, are not sufficient to award the other parent sole parental responsibility. The important thing is to show the court that both issues are being or have been addressed and dealt with through counselling, treatment, etc. Judges see cases involving these issues every day in a variety of different contexts. The key to the future with your child and how the court will address the same is in your hands.

How does a court decide which parent will get custody of a child

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Do I need a Divorce Attorney if I’m in Jail?

Question:

MY SON IS BEING SUED FOR DIVORCE. HE IS IN JAIL. SHOULD I HIRE AN ATTORNEY FOR HIM?

Martin County Divorce Attorney Joseph Gufford

Yes, you should almost without question hire an attorney to represent your son’s interests. I don’t know what the Wife has asked for in her Petition, but issues such as parental responsibility, child support alimony and division of assets and debts could be important issues that need to be addressed. Even though he is in prison at this point, it would not be a good thing for him to leave prison with a back breaking Judgment for payment of child support/alimony, etc. that he has no ability to comply with.

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Can I move out of State with my child?

Question: Can I move out of state if I have a child and have been separated from his father 3 years but are still legally married? We have a child support order already but no custody agreement. My sons lives with me full time

Joseph Gufford Child Custody Attorney Stuart

The short answer to the question is Yes. You can go with your child wherever you want to so long as there is no court order in place that prevents you from doing so. The real answer is that if you did leave the state with the child, you could be placing yourself in a difficult legal situation as Florida would be the home state of the child until such time as you had lived outside the state with the child for 6 months. The relocation statute could come into play. 61.13001. Thus, while you probably can leave, it might not be best to do so without getting things in place properly before you go.

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How do I begin a divorce?

Question:

My spouse committed adultery and i want to divorce him. i have a 6 month old child he has not seen since he was born due to living 4 hrs away. He hasnt helped me financially with him what so ever. he says he wants custody of him but i have a domestic charge against him and dont trust him with my child. also, he has my car that is in both our names which i have been paying for since we financed it– he says he will wreck it before giving it to me. I want to start my divorce process as soon as possible just dont know where or how to start.

Joseph Gufford Family Law Lawyer Stuart, Florida

The adultery issue is probably not a significant issue for the court as Florida is a “no fault divorce” state. There are some limited circumstances in which it might be applicable. The more significant issue is the domestic violence. That is a significant factor that needs to be addressed. You need an experienced family law attorney to assist you with navigating your way through this process.

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What constitutes good grounds for objecting to or moving to strike a notice of non-jury trial filed in a family case?

What constitutes good grounds for objecting to or moving to strike a notice of non-jury trial filed in a family case? No discovery has been conducted and no temporary relief orders have been issued.  There has been absolutely no time to prepare the case for trial and without ANY discovery from the other side (who filed the Notice of Non-Jury Trial) and no depositions taken in the matter, it is impossible to adequately prepare the case for trial in such limited time per the notice.

The fact that there has been no temporary relief order or hearing entered is not grounds. However, the failure to comply with mandatory disclosure and/or discovery may be good grounds. Also, the matter must be “at issue”, meaning that the pleadings, Petition, Answer, Counter-petition and Answer to Counter-petition have been filed. Also, there are time limitations associated with noticing the case for trial. I would not venture into this situation without the assistance of a good family law attorney.

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Father’s Rights- What Rights do Father’s Have With Respect to Children

Firstly,  the purpose of this blog post is not to say that I have any favoritism towards  Fathers over Mothers when it comes to whom I represent. I represent both fathers and mothers with equal vigor. So, this post should be equally informative to both.  In the marriage context, Father’s have just as many rights to the care, custody and control of their children as mother do.  In the non-marriage context, father’s have to establish  their status as the legal father of the child, i.e paternity. The term paternity does not mean a “paternity test”.  Paternity testing is a method of proving paternity and establishing the legal father/child relationship.  The Department of Revenue  has added to the public’s confusion. DOR can only establish paternity and child support obligations and enforce the same. However, in their orders, they frequently refer to one parent as being the “custodial” or “non-custodial”. Since DOR can only establish paternity and child support, these designations are very misleading to both parents. In essence, the designation of a custodial or non-custodial parent in a DOR order is meaningless. Until a court that has the capacity to determine custody issues has done so, either parent can petition the court for relief.     

In the early days of child custody law, mothers definitely had the upper hand when it came to custody issues.  That has changed quite a bit over the last few years as Florida has abandoned concepts of “custody” and made shared parental responsibility the standard in Florida.

What does “Shared Parental Responsibility” mean you might ask? The term is somewhat misleading  and has nothing do with  who has a child  and when. It simply means that both parents are required to “confer” when making “major decisions” affecting the welfare of their children. Did I say “agree”. No, I didn’t. I said “confer”. About what? “Major Decisions”.  If you can’t agree on a major decision,  then you take it in front of the judge and the judge decides the  issue.

The next issue is what type of Parenting Plan is the Court going to enter. You have have heard terms like “primary residence”, “primary custody”, “primary residential responsibility”, etc.  Those terms no longer exist under Florida Law because they were misleading  and gave the person who had “primary residential responsibility” the belief that they did not have to engage in shared parenting because they had “custody”. All of that changed in 2008 when the Florida Legislature enacted sweeping changes to Florida’s child Custody Laws.  Basically, the misleading terms were taken out of the statutes in favor of  shared parenting  as it was intended to be.

In the 19th Judicial Circuit (Martin, St. Lucie, Okeechobee and Indian River Counties), we are blessed with having a set of Circuit Judges who are very knowledgeable in the changes to Florida law. Fathers and Mothers receive equal treatment and consideration  when it comes to parental responsibility and timesharing considerations. However, old myths still haunt  the public’s view of child custody.  The theory that in order for a father to get majority timesharing that he has to prove the mother to be “unfit” is no longer true. Likewise, the theory that Father’s always get “screwed” in the divorce/child custody context is likewise not true.  Mothers need to be aware of this as well because many of them operate under these myths.

       

In the 2008 legislative session, Florida made sweeping changes in its law regarding how, what was commonly referred to in the public as “custody” or “primary residence” is determined. The term “custody” is not a proper term under Florida law even though it has been used for years by the public, lawyers and judges to describe the parent with whom a child primarily lives. Because of the extensive impact of the new legislative changes, requiring a revision to not only many statutes, but numerous Supreme Court forms, as well as the likely creation of new ones, this law does not go into effect until October 1, 2008.

In its most simplistic explanation, this new law eliminates the terms “custody”, “custodial” and “non-custodial parent”, “primary residence”, “primary residential parent” and “visitation” from Chapter 61 and all other statutes which utilize these arcane and often litigation inducing terms, in exchange for shared parenting plans and time-sharing arrangements.

However, the law goes further by expanding the considerations of shared parental responsibility and in the establishment of parenting plans, which include time-sharing schedules, which are now mandatory. 

“Shared Parental Responsibility” versus “Sole Parental Responsibility”

In Florida, the Court has two initial options when deciding “parental responsibility” issues. The Court can award the parties “Shared Parental Responsibility” or it can award one of the parties “Sole Parental Responsibility”. What is the difference between “Shared Parental Responsibility” and “Sole Parental Responsibility” you might ask? Under the new statute, “Sole Parental Responsibility” means a court-ordered relationship in which one parent makes decisions regarding the minor child. “Shared parental responsibility” means a court-ordered relationship in which both parents retain full parental rights and responsibilities with respect to their child and in which both parents confer with each other so that major decisions affecting the welfare of the child will be determined jointly.

Parenting Plans must Now be Developed instead of the Court Determining Primary Residence

Generally speaking, the courts favor Shared Parental Responsibility. The terms “Primary Physical Residence” or “Primary Residential Responsibility” were in the past considered by many to be the “buzzwords” for what is generally referred to as “custody” in many other states. Those terms have now been deleted from the 2008 version of the statute in favor of the Court now developing a “Parenting Plan” for the child(ren). A “parenting plan” 1 has certain minimum requirements (see footnote) 2 .

What is Shared Parenting?

Shared parenting requires parents to confer with each other when making major decisions that affect the health, safety and welfare of the child. It does not mean 50/50 custody as the term

itself might imply. In fact, it has nothing whatsoever to do with where a child lives or the amount of time the child spends with one parent or the other 3 . Shared parenting only means that both parents have to confer with each other when making major decisions affecting the welfare of their children and that both parents retain full parental rights and responsibilities. In short, just because parents are breaking up or divorcing each other, it does not mean that they are divorcing their children.

Sole Parental Responsibility is the Exception in Florida Law-On What Basis Can the Court Award Sole Parental Responsibility?

Sole Parental Responsibility is very much the exception in Florida and is generally only ordered in cases where one parent is “unfit” to share in the parenting of the child. It is necessary, before sole responsibility is given to one parent, that the court determine that shared responsibility would be detrimental to the child 4 . The statutory law 5 and the case law on the subject states that the

Court must find that shared parental responsibility would be detrimental to the best interests of the child . If the court determines that shared parental responsibility would be detrimental to the child 6 , it may order sole parental responsibility 7 . There are also statutory reasons for a Court to Order Sole Parental Responsibility 8 .

Rotating Custody- Another Option for The Court to Examine

Another option for parents who generally “get along” with each other is “rotating physical custody” (50/50). This type of situation has, in the past, generally not been favored by the courts and the statutes 9 . However, rotating custody is becoming more in “vogue” at the current time 10 .

The Factors that the Court Must Consider in Developing a Parenting Plan

When the parents cannot agree on a parenting plan, the court will make the decision for them after considering the totality of the circumstances, with the overriding consideration being the child’s best interests. To make that determination, the court considers the following factors:

  1. The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required
  2. The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
  3. The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
  4. The length of time the child has lived in a stable, satisfactory environment.and the desirability of maintaining continuity.
  5. The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
  6. The moral fitness of the parents.
  7. The mental and physical health of the parents.
  8. The home, school, and community record of the child.
  9. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
  10. The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.
  11. The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.
  12. The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
  13. Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought
  14. Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
  15. The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
  16. The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
  17. The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse
  18. The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
  19. The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
  20. Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.

In many cases, a consideration of these factors results in awarding custody to the parent who has been the child’s primary caretaker during the marriage/relationship 11 . Although this is often the child’s mother, any preference for the mother strictly on a gender basis is outmoded and has been abrogated by statute and case law on the subject 12 . In many cases, fathers have been proven to be the better parent and have been awarded primary residence.


Under the statute, a “parenting plan” is defined as follows: “Parenting plan” means a document created to govern the relationship between the parties relating to the decisions that must be made regarding the minor child and shall contain a time-sharing schedule for the parents and child. The issues concerning the minor child may include, but are not limited to, the child’s education, health care, and physical, social, and emotional well-being. In creating the plan, all circumstances between the parties, including the parties’ historic relationship, domestic violence, and other factors must be taken into consideration. The parenting plan shall be developed and agreed to by the parents and approved by a court or, if the parents cannot agree, established by the court. 

As per the statute: 
(b) Any parenting plan approved by the court must, at minimum, describe in adequate detail how the 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. 

See Longo v. Longo, 576 So.2d 402 (Fla. 2nd DCA 1991) in which the Court stated that: 
“As stated in section 61.13(2)(b)1, “[i]t is the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the … marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities of childrearing.” A natural parent should not be precluded from asserting valid parental rights, irrespective of a default judgment entered against him. See Rhines; Doane v. Doane, 279 So.2d 46 (Fla. 4th DCA 1973).” 

Hunter v. Hunter, 540 So. 2d 235 (Fla. Dist. Ct. App. 3d Dist. 1989); Hicks v. Hicks, 511 So. 2d 628 (Fla. Dist. Ct. App. 2d Dist. 1987); Holland v. Holland, 458 So. 2d 81 (Fla. Dist. Ct. App. 5th Dist. 1984); Nichols v. Nichols, 432 So. 2d 648 (Fla. Dist. Ct. App. 1st Dist. 1983); 
Sole parental responsibility of the parties’ child could not be awarded to the former wife absent a specified finding on the record or in the final judgment that shared parental responsibility would be detrimental to the child. Griffin v. Griffin, 665 So. 2d 352 (Fla. Dist. Ct. App. 1st Dist. 1995). 

Fla. Stat. 61.13(2)(b)2 provides as follows: 
2. The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. Evidence that a parent has been convicted of a felony of the third degree or higher involving domestic violence, as defined in s. 741.28 and chapter 775, or meets the criteria of s. 39.806(1)(d), creates a rebuttable presumption of detriment to the child. If the presumption is not rebutted, shared parental responsibility, including visitation, residence of the child, and decisions made regarding the child, may not be granted to the convicted parent. However, the convicted parent is not relieved of any obligation to provide financial support. If the court determines that shared parental responsibility would be detrimental to the child, it may order sole parental responsibility and make such arrangements for visitation as will best protect the child or abused spouse from further harm. Whether or not there is a conviction of any offense of domestic violence or child abuse or the existence of an injunction for protection against domestic violence, or child abuse or the existence of an injunction for protection against domestic violence, the court shall consider evidence of domestic violence or child abuse as evidence of detriment to the child. 

a. In ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child’s welfare or may divide those responsibilities between the parties based on the best interests of the child. Areas of responsibility may include primary residence, education, medical and dental care, and any other responsibilities that the court finds unique to a particular family. 

b. The court shall order “sole parental responsibility, with or without visitation rights, to the other parent when it is in the best interests of” the minor child. 

Trial court could not award wife sole parental responsibility for minor children without first making finding that shared parental responsibility would be detrimental to children. West’s F.S.A. 61.13(2)(b) 2. Schram v. Schram, 932 So. 2d 245 (Fla. Dist. Ct. App. 4th Dist. 2005). 
Trial court was required to make a specific finding that shared parental responsibility would have been detrimental to the parties’ child before awarding mother sole parental responsibility. West’s F.S.A. 61.13(2)(b) 2. Evans v. Woodard, 898 So. 2d 230 (Fla. Dist. Ct. App. 2d Dist. 2005). 
The trial court abused its discretion when it awarded sole parental responsibility to wife, in divorce proceeding, where there was no finding that shared parental responsibility would be detrimental to the children. West’s F.S.A. 61.13(2)(b)2. Coyne v. Coyne, 895 So. 2d 469 (Fla. Dist. Ct. App. 2d Dist. 2005). Trial courts are required to make a specific finding of detriment to the child before awarding sole parental responsibility. West’s F.S.A. 61.13(2)(b)2. Maslow v. Edwards, 886 So. 2d 1027 (Fla. Dist. Ct. App. 5th Dist. 2004). 
Trial court’s failure to make a specific finding that shared parental responsibility would be detrimental to child before awarding sole parental responsibility to mother necessitated remand of paternity action. West’s F.S.A. 61.13(2)(b)2. Maslow v. Edwards, 886 So. 2d 1027 (Fla. Dist. Ct. App. 5th Dist. 2004). 

Fla. Stat. 61.13(2)(b)2. 
Sole parental responsibility means a court-ordered relationship in which one parent makes decisions regarding the minor child. Fla. Stat. 61.046(15). 

Fla. Stat. 61.13, effective October 1, 2008 now reads as follows: 
Evidence that a parent has been convicted of a felony of the third degree or higher involving domestic violence, as defined in s. 741.28 and chapter 775, or meets the criteria of s. 39.806(1)(d), creates a rebuttable presumption of detriment to the child. If the presumption is not rebutted, shared parental responsibility, including time-sharing with the child, and decisions made regarding the child, may not be granted to the convicted parent. However, the convicted parent is not relieved of any obligation to provide financial support. If the court determines that shared parental responsibility would be detrimental to the child, it may order sole parental responsibility and make such arrangements for time-sharing as specified in the parenting plan as will best protect the child or abused spouse from further harm. Whether or not there is a conviction of any offense of domestic violence or child abuse or the existence of an injunction for protection against domestic violence, the court shall consider evidence of domestic violence or child abuse as evidence of detriment to the child. 

See Fla. Stat. 61.121 which was not changed in the 2008 legislation that reads as follows: 
61.121. Rotating custody 
The court may order rotating custody if the court finds that rotating custody will be in the best interest of the child. 
See also the case of Mancuso In Mancuso v. Mancuso, 789 So.2d 1249, (Fla. 4th DCA, 2001) the Court stated as follows: 
“On the contrary, section 61.121, Florida Statutes (1997), requires that the trial court make a finding that rotating custody is in the best interest of the child. In light of the long-standing presumption that rotating the primary residence is not in the best interest of the child, the trial court should carefully examine a marital settlement agreement providing for such an arrangement and exercise its discretion in determining whether it is in the child’s best interest. See Bracken v. Bracken, 704 So.2d 746, 747 (Fla. 4th DCA 1998). See also Mandell v. Mandell, 741 So.2d 617, 618 (Fla. 2d DCA 1999)(holding that section 61.121 did not set aside the long held presumption that rotating custody is not in the best interest of a minor child). [2] Florida courts have identified several factors that a trial court should consider in determining whether the circumstances overcome the presumption against rotating the primary residence: (1) the age and maturity of the child; (2) whether the child is in school; (3) the proximity of the parents’ residences; (4) the child’s preferences; (5) the disruptive effect of the rotation on the child; (6) the reasonableness of the periods of time spent with each parent; (7) the relation of the periods of custody to divisions in the child’s life, such as the school year, and (8) the parents’ attitude toward one another or how their attitude will be perceived by the child. Bracken, 704 So.2d at 747 (citing Langford v. Ortiz, 654 So.2d 1237, 1238 (Fla. 2d DCA 1995)); MacConnell v. Cascante, 668 So.2d 668, 670 (Fla. 4th DCA 1996).” 

10 In this author’s opinion, it is more in “vogue” because of Florida’s somewhat onerous child support obligations imposed on the parent who has less than 146(40%) overnight per year. However, for many parents this type of timesharing has worked out beautifully and has allowed the child to continue to have a strong bond with those parents. 

11 See factor “o” above that states: 
(o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties. 

12 See Fla. Stat. 61.13(2)(c) that provides in the new 2008 version of the statute as follows: There is no presumption for or against the father or mother of the child when creating or modifying the parenting plan. 
See also the case of Walczak v. Walczak, 763 So.2d 1055 (Fla.4th DCA 1999) in which the Court, interpreting a previous version of the statute, held that: 

  1. The “Tender years” doctrine has been abrogated by statute and case law; and
  2. 2. “Florida Statutes and in this district by opinion in Kuutti v. Kuutti, 645 So.2d 80 (Fla. 4th DCA 1994)(en banc). Some of the trial court’s comments lead us to believe that his decision to impose limitations on overnight visitation was based partially on the “tender years” doctrine.

           

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What is a Durable Power of Attorney in Florida and Why Should I have One

Durable Power of Attorney

Q: What is a Durable Power of Attorney for Property?

A Durable Power of Attorney for Property (DPA) is a document that allows you (the principal) to give authority to another person (youragent or attorney-in-fact) to make financial/legal decisions and financial transactions on your behalf. It is called “durable” when, by its terms, it remains effective even if the principle becomes mentally incompetent.

Q: Who can serve as attorney-in-fact?

It need not be an attorney: any trusted adult, such as a spouse, partner, relative or friend, can serve as attorney-in-fact. Also, there are several nonprofit agencies that can fill this role. It is always a good idea to name at least one alternate attorney-in-fact to serve in the event that your first choice becomes disabled or dies. Your attorney-in-fact will have broad authority, and it is critical that the person or agency you choose be trustworthy and sensitive to your wishes.

Q: What powers can I give to my attorney-in-fact?

The powers you give your attorney-in-fact can be as limited or as broad as you like, and can include the power to buy property, to invest, to contract, to engage in tax planning, to make gifts, and, very importantly, to plan for government benefits, such as Supplemental Security Income and Medicaid (Medi-Cal in California).

Q: What is a “springing” Durable Power of Attorney?

Ordinarily, a DPA is effective as of the day it is signed and executed. This means that even if you are competent to make your own decisions, your attorney-in-fact will also have the legal authority to act on your behalf and engage in financial transactions.

A “springing” DPA, on the other hand, becomes effective at a later date, usually when the principal becomes mentally incompetent – it “springs” into effect at the point you lose capacity, as certified by a physician or other designated individual. Fla. Stat. 709.2108 provides as follows:

709.2108 When power of attorney is effective.—

(1) Except as provided in this section, a power of attorney is exercisable when executed.
(2) If a power of attorney executed before October 1, 2011, is conditioned on the principal’s lack of capacity and the power of attorney has not become exercisable before that date, the power of attorney is exercisable upon the delivery of the affidavit of a physician who has primary responsibility for the treatment and care of the principal and who is licensed to practice medicine or osteopathic medicine pursuant to chapter 458 or chapter 459 as of the date of the affidavit. The affidavit executed by the physician must state that the physician is licensed to practice medicine or osteopathic medicine pursuant to chapter 458 or chapter 459, that the physician is the primary physician who has responsibility for the treatment and care of the principal, and that the physician believes that the principal lacks the capacity to manage property.
(3) Except as provided in subsection (2) and s. 709.2106(4), a power of attorney is ineffective if the power of attorney provides that it is to become effective at a future date or upon the occurrence of a future event or contingency.

Note: Some banks are reluctant to accept a “springing” DPA because of the possible ambiguities involved in deciding when a person is “mentally incompetent.” You should consult with your bank about its requirements for accepting a DPA.

Q: What are the advantages of a Durable Power of Attorney?

A DPA is a relatively easy, inexpensive mechanism for allowing another person to handle your legal and financial affairs.  The main advantage for your loved ones is that if you have a DPA in place, your loved ones can avoid having to file a guardianship proceeding, which is extremely costly. Unlike a joint tenancy bank account, which people often use as a management device in the event of incapacity, a DPA does not give your attorney-in-fact legal access for his or her own use. Your attorney-in-fact must use your assets for your benefit. However, sometimes DPA’s are abused by the holder of the same because of the broad grant of powers. So, be careful who you choose. 

Also unlike joint bank accounts, a DPA allows you to transfer decision-making power without disrupting your estate plan. When you create a joint tenancy bank account, you not only give your “joint tenant” access to your funds, but on your death, all of the funds in that account will automatically go to the joint tenant by right of survivorship. Assets in a joint tenancy account are not subject to your Will. A Durable Power of Attorney, on the other hand, in no way affects the disposition of your assets upon your death and, in fact, ceases to be effective when the principal dies.

A properly drafted DPA can give you the flexibility to plan for government benefits such as Medicaid. For example, the attorney-in-fact can be given authority to transfer the principal residence to your spouse if you need to be in a nursing home or require government assistance.

Q: What are the disadvantages of a Durable Power of Attorney?

The main disadvantage of a DPA is that it is subject to abuse because there is no ongoing court super-vision of the attorney-in-fact. This differs from a conservatorship or guardianship, under which a conservator is required to submit an ongoing accounting to the court. If the attorney-in-fact abuses his or her authority and acts improperly, a court may step in and take action. However, in many cases, the damage is already done, and it is difficult to undo it. Thus, you should take great care in selecting your attorney-in-fact. Many times, elderly people are taken advantage of by caregivers, maids, home health aids, etc.  and give a DPA to them. If this occurs, immediate action needs to be taken to correct the situation. Joe Gufford Attorney has litigated several cases where this has occurred to stop the damage from continuing to accrue. However, the incapacitated person’s estate in one case was literally decimated and it took thousands of dollars to correct the situation. In that particular case, the caregiver called the Department of Children and Families in an attempt to get the incapacitated person’s daughter arrested for elder abuse.  The caregiver also took the incapacitated person to an attorney to have them execute a new will. Although it is extraordinary, we were able to get the DPA invalidated  and, in the guardianship action, we were able to engage in estate planning so that the incapacitated person’s true wishes as set forth in the valid will were put back into place.      

Q: Do I need a lawyer to have a Durable Power of Attorney drafted?

Yes. Although there are “forms” available on the internet  and even at your local Staples store, they are often not valid. They are worded broadly and may not succeed in delegating the range of authority you intend. First, a qualified attorney will be familiar with the state-specific requirements for DPA forms. Second, an attorney can draft the DPA to meet your individual needs. Third, since a DPA is subject to abuse, it is a good idea to meet with an attorney to make sure both the principal and attorney-in-fact understand the document and the attorney is assured of the principal’s competency.

Q: How do I execute a Durable Power of Attorney?

An adult must be competent in order to execute a valid DPA. If there is a question regarding competency, it is a good idea to get a doctor’s letter or declaration regarding the principal’s capacity to understand and sign a DPA at the time the document is executed. You must sign your DPA in the presence of two qualified witnesses  and a notary public. 

For real estate transactions, you will have to file your DPA with a county land records office. To be sure you meet your state’s legal requirements for a DPA, you should consult with a qualified attorney.

What are the Duties of the Agent?

 The duties of the agent are outlined in Fla. Stat. 709.2114 which provides as follows:

709.2114 Agent’s duties.—

(1) An agent is a fiduciary. Notwithstanding the provisions in the power of attorney, an agent who has accepted appointment:
(a) Must act only within the scope of authority granted in the power of attorney. In exercising that authority, the agent:
1. May not act contrary to the principal’s reasonable expectations actually known by the agent;
2. Must act in good faith;
3. May not act in a manner that is contrary to the principal’s best interest, except as provided in paragraph (2)(d) and s. 709.2202; and
4. Must attempt to preserve the principal’s estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal’s best interest based on all relevant factors, including:
a. The value and nature of the principal’s property;
b. The principal’s foreseeable obligations and need for maintenance;
c. Minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes;
d. Eligibility for a benefit, a program, or assistance under a statute or rule; and
e. The principal’s personal history of making or joining in making gifts;
(b) May not delegate authority to a third person except as provided in s. 518.112;
(c) Must keep a record of all receipts, disbursements, and transactions made on behalf of the principal; and
(d) Must create and maintain an accurate inventory each time the agent accesses the principal’s safe-deposit box, if the power of attorney authorizes the agent to access the box.
(2) Except as otherwise provided in the power of attorney, an agent who has accepted appointment shall:
(a) Act loyally for the sole benefit of the principal;
(b) Act so as not to create a conflict of interest that impairs the agent’s ability to act impartially in the principal’s best interest;
(c) Act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances; and
(d) Cooperate with a person who has authority to make health care decisions for the principal in order to carry out the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, act in the principal’s best interest.
(3) An agent who acts in good faith is not liable to any beneficiary of the principal’s estate plan for failure to preserve the plan.
(4) If an agent is selected by the principal because of special skills or expertise possessed by the agent or in reliance on the agent’s representation that the agent has special skills or expertise, the special skills or expertise must be considered in determining whether the agent has acted with care, competence, and diligence under the circumstances.
(5) Absent a breach of duty to the principal, an agent is not liable if the value of the principal’s property declines.
(6) Except as otherwise provided in the power of attorney, an agent is not required to disclose receipts, disbursements, transactions conducted on behalf of the principal, or safe-deposit box inventories, unless ordered by a court or requested by the principal, a court-appointed guardian, another fiduciary acting for the principal, a governmental agency having authority to protect the welfare of the principal, or, upon the death of the principal, by the personal representative or successor in interest of the principal’s estate. If requested, the agent must comply with the request within 60 days or provide a writing or other record substantiating why additional time is needed and comply with the request within an additional 60 days.
Can I Revoke a Power of Attorney?
Yes.  Fla. Stat. 709.2110 provides as follows:
709.2110 Revocation of power of attorney.—
(1) A principal may revoke a power of attorney by expressing the revocation in a subsequently executed power of attorney or other writing signed by the principal. The principal may give notice of the revocation to an agent who has accepted authority under the revoked power of attorney.
(2) Except as provided in subsection (1), the execution of a power of attorney does not revoke a power of attorney previously executed by the principal.
 
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Will the Police or Law Enforcement Help you Get your Child Back

QUESTION: My ex is keeping my son from me. she leaves him with her friends while at work.if i have a police escort can i get child back?My ex is keeping my son from me. she leaves him with her friends while at work. if i have a police escort will the police allow me to take my son back since i should have parental authority over her friends? our divorce agreement doesn’t state specific time share. Just says we will work out time share between me and my ex.. I know this seems drastic but i haven’t seen my son in 3 weeks and she has ceased all contact with me so i cant even confirm his safety. of course if i was able to do this i know the next step is to have custody changed to something with specific days set. Live and Learn…

ANSWER: Generally speaking, the police are not going to get involved and will tell you that it is a civil matter. Unless they have an order In their hands ordering them to put the child into your physical custody, they will not be any help. Even if you show up at one of her friends house with the police in tow. They will call your ex to the scene and your kid goes nowhere. You need to hire competent legal counsel who can assist you with this matter. This issue comes up quite a bit in my practice  so let’s examine it a little further. Often people think that the term “paternity” means a DNA test. The term paternity really means the legal establishment of the parent/child relationship. Fla. Stat. 742.011 provides as follows:

 742.011 Determination of paternity proceedings; jurisdiction.—Any woman who is pregnant or has a child, any man who has reason to believe that he is the father of a child, or any child may bring proceedings in the circuit court, in chancery, to determine the paternity of the child when paternity has not been established by law or otherwise.

Paternity can be established in a number of different ways under Florida Law.  I won’t go through all of the various methods of establishing paternity within  the context of this post.  However, being on the child’s birth certificate does have legal significance. Fla. Stat. 742.10 provides in pertinent part as follows:

 742.10 Establishment of paternity for children born out of wedlock.—

(1) Except as provided in chapters 39 and 63, this chapter provides the primary jurisdiction and procedures for the determination of paternity for children born out of wedlock. If the establishment of paternity has been raised and determined within an adjudicatory hearing brought under the statutes governing inheritance, or dependency under workers’ compensation or similar compensation programs; if an affidavit acknowledging paternity or a stipulation of paternity is executed by both parties and filed with the clerk of the court; if an affidavit, a notarized voluntary acknowledgment of paternity, or a voluntary acknowledgment of paternity that is witnessed by two individuals and signed under penalty of perjury as provided for in s. 382.013 or s. 382.016 is executed by both parties; or if paternity is adjudicated by the Department of Revenue as provided in s. 409.256, such adjudication, affidavit, or acknowledgment constitutes the establishment of paternity for purposes of this chapter. If an adjudicatory proceeding was not held, a notarized voluntary acknowledgment of paternity or voluntary acknowledgment of paternity, which is witnessed by two individuals and signed under penalty of perjury as specified by s. 92.525(2), creates a rebuttable presumption, as defined by s. 90.304, of paternity and is subject to the right of any signatory to rescind the acknowledgment within 60 days after the date the acknowledgment was signed or the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a support order, in which the signatory is a party, whichever is earlier. Both parents must provide their social security numbers on any acknowledgment of paternity, consent affidavit, or stipulation of paternity. Except for affidavits under seal pursuant to ss. 382.015 and 382.016, the Office of Vital Statistics shall provide certified copies of affidavits to the Title IV-D agency upon request.
 
So, being on the child’s birth certificate does have implications. However, Fla. Stat. 744.301 provides as follows:
744.301 Natural guardians.—
(1) The parents jointly are the natural guardians of their own children and of their adopted children, during minority. If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries. If the marriage between the parents is dissolved, the natural guardianship belongs to the parent to whom sole parental responsibility has been granted, or if the parents have been granted shared parental responsibility, both continue as natural guardians. If the marriage is dissolved and neither parent is given parental responsibility for the child, neither may act as natural guardian of the child. 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.
 
So, even if paternity has been established under Florida law, the Mother of the child has custody  until such time as the court enters an order stating otherwise.  However, depending upon which law enforcement officer you get on any particular day, outcomes may differ. If the Father has the child and is on the birth certificate, the police might just say “take it to court, this is a civil matter” even if there is no order in place regarding child custody (Parental Responsibility). If the Mother has the child and the Father is trying to get the child, the same situation may apply.
Many people believe that  if the Department of Revenue has established Paternity and/or child support that such constitutes a custody order. Unfortunately, Department of Revenue child support orders frequently use language  that refers to one or the other parent as the “custodial” or “non-custodial parent”. The use of this language is often confusing to the general public, the parents and law enforcement. However, the Department of Revenue is statutorily prevented from adjudicating custody matters. So, what’s the bottom line?
Regardless of whether you are the mother of a child or the father of a child,  you need to establish custodial rights (Parental Responsibility, Visitation, Timesharing, etc.).  In going through this process, you need an experienced attorney to represent your interests.  The impact of not having a lawyer to represent you could have far reaching implications that most people are unaware of. The Parenting Plan, to the extent that it provides for over 20% of the overnights in any given year may have significant implications as far as child support is concerned. See the following link: http://www.treasurecoastlawfirm.com/CM/FalmilyLawFAQ/FL-FAQ-How-is-the-amount.asp   
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