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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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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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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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Parent/Child Relocation in Florida by Joe Gufford Attorney

QUESTION:I reside in st lucie county and wish to move to orlando. We have joint custody?i understand it is more 50 miles? can i move Joint custody of 3 kids. oldest is 18, 14,9 years old.

Answer: The 18 year old is not an issue as he is now an adult and can decide on his own where he wants to live.  Fla Stat. 743.07 provides as follows:

743.07 Rights, privileges, and obligations of persons 18 years of age or older.—(1) The disability of nonage is hereby removed for all persons in this state who are 18 years of age or older, and they shall enjoy and suffer the rights, privileges, and obligations of all persons 21 years of age or older except as otherwise excluded by the State Constitution immediately preceding the effective date of this section and except as otherwise provided in the Beverage Law.

(2) This section shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years when such dependency is because of a mental or physical incapacity which began prior to such person reaching majority or if the person is dependent in fact, is between the ages of 18 and 19, and is still in high school, performing in good faith with a reasonable expectation of graduation before the age of 19.
(3) This section shall operate prospectively and not retrospectively, and shall not affect the rights and obligations existing prior to July 1, 1973.

As to the remaining children, you need to take a look at Fla. Stat. 61.13001. Relocations are very difficult to achieve. You need experienced counsel to assist you with this type of matter. Below is a summary of the statute as well as the case law interpreting the same. 

Relocation is an issue that is often addressed  either in an initial custody action or after an initial custody order  has been established. Florida Statute 61.13001 specifically addresses the issue of relocation. This statute prevents a residential parent from relocating their residence more than 50 miles unless the parties enter into a written agreement before the move or a court approves the relocation. We have successfully prosecuted and defended relocation actions throughout the 19th Judicial Circuit. Read more about  the relocation statute and the cases interpreting it here. Relocation.

Restrictions on Relocation and Florida’s Relocation Statute

[a] No Relocation Without Agreement or Court Order. The relocation statute, Florida Statutes Section 61.13001, basically requires that persons designated in the statute obtain court permission to relocate, either by obtaining the court’s ratification of an agreement or by obtaining a court order allowing relocation. The statute was amended in 2008 to reflect changes in statutory terminology that were enacted that year [see 2008 Fla. Laws, ch. 2008-61, § 9; see also § 32.03]. The statute was also amended in 2009 to simplify procedures for obtaining permission to relocate [see [d], below], and to expand the category of persons who must obtain permission to relocate. Under the 2009 amendments, any parent or nonparent who desires to relocate and who has court-ordered rights to maintain the child’s residence or who has court-ordered rights of timesharing with, or access to, the child, must enter into an agreement or obtain a court order allowing the relocation [see Fla. Stat. § 61.13001(1)(c)-(e)(3)]. Previously, only parents and nonparents with whom children resided were required to obtain agreements or court orders allowing them to relocate [see 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(1) (amendments included deletion of Florida Statutes Section 61.13001(1)(a), which defined “change of residence address” as change in child’s address)].

It should be noted that a summary of amendments at the beginning of the pertinent 2009 chaptered law explains that the term “access to” in the relocation statute is a substitute for the term “visitation” [see 2009 Fla. Laws, ch. 2009-180].

A parent or nonparent who would otherwise be required to obtain permission to relocate because he or she has court-ordered rights to spend time with the child is not required to obtain permission if he or she is moving his or her principal residence to a place less than 50 miles from the principal residence address he or she had when the pending action was filed or the last order or judgment establishing timesharing was rendered. In contrast, a parent or nonparent who has court-ordered rights to spend time with the child and who desires to relocate to a principal residence address that is 50 miles or more from his or her previously declared principal residence address must obtain permission to relocate [see Fla. Stat. § 61.13001(1)(e)(3); see also 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(1)(3)]. Procedurally, a parent or nonparent who is required to obtain permission to relocate must obtain one of the following [see Fla. Stat. § 61.13001(2)(a)(3)]:

  1. A written agreement to the relocation, entered into by the other parent and all other persons entitled to timesharing with, or access to, the child, and court ratification of the agreement [see Fla. Fam. L. R. P. Form 12.950(a), § 32.220].
  2. An ex parte court order that allows relocation based on a lack of timely response by the other parent or any other person who (1) is entitled to timesharing with, or access to, the child; and (2) has been served with a petition to relocate [see Fla. Fam. L. R. P. Form 12.950(a), § 32.220].
  3. A court order that allows relocation following a noticed evidentiary hearing [see Fla. Fam. L. R. P. Form 12.950(i), § 32.228].

The relocation statute applies to temporary and permanent orders that were or are entered on or after October 1, 2009 and that address parenting plans, custody, primary residence, timesharing with, or access to the child [see Fla. Stat. § 61.13001(11)(a)2.]. In addition, the statute applies to any temporary or permanent relocation or proposed relocation as to which an issue arises in a proceeding that (1) was pending on October 1, 2009; and (2) concerns a parenting plan, custody, primary residence, timesharing with, or access to the child [see Fla. Stat. § 61.13001(11)(a)3.]. Finally, the relocation statute applies to orders that were entered before October 1, 2009 if the existing order does not expressly govern relocation of the child [see Fla. Stat. § 61.13001(11)(a)1.]. If an order existing on October 1, 2009 conflicts with the 2009 relocation statute, the statute does not apply to the extent the existing order expressly governs relocation of the child or a change in the principal address of a parent or other person [Fla. Stat. § 61.13001(11)(b)); see also 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(11)].

[b] Definitions of Terms. In actions to which the 2009 relocation statute is applicable [see [a], above], the following definitions apply [see Fla. Stat. § 61.13001(1); see also 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(1)]:

  1. “Child” means any person who is under the jurisdiction of a state court pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), or who is the subject of any order granting to a parent or other person any right to timesharing, residential care, kinship, or custody as provided under state law [see Fla. Stat. § 61.13001(1)(a)].
  2. “Court” means (1) the circuit court in an original proceeding that has proper venue and jurisdiction in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), (2) the circuit court in the county in which either parent and the child reside, or (3) the circuit court in which the original action was adjudicated [see Fla. Stat. § 61.13001(1)(b)].
  3. “Other person” means an individual (1) with whom the child resides pursuant to court order, but who is not the parent of the child; (2) who has timesharing rights with the child; or (3) who has rights of access to the child [see Fla. Stat. § 61.13001(1)(c)].
  4. “Parent” means (1) any person named as the child’s parent by court order or by express written agreement that is subject to court enforcement, or (2) a person reflected as the child’s parent on a birth certificate and who is entitled to timesharing with or access to the child [see Fla. Stat. § 61.13001(1)(d)].
  5. “Relocation” means a change in the location of the principal residence of a parent or other person as it was at the time of the last order establishing or modifying timesharing, or at the time of filing the pending action to establish or modify timesharing. The change of location must be at least 50 miles from that residence, and must be for at least 60 consecutive days, not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of health care for the child [see Fla. Stat. § 61.13001(1)(e)].

According to a summary of amendments at the beginning of the 2009 chaptered law that contains the revised relocation statute, the term “access to [the child]” is a substitute for the term “visitation with [the child]” [see 2009 Fla. Laws, ch. 2009-180; see also [a], above]. The statute itself does not define “access to” the child.

[c] Requirements of Agreement. Pursuant to the relocation statute as it was amended in 2009 [see [a], above], an agreement that allows relocation by a parent or other person [see [b], above (definitions)] must be in writing and must be signed by the child’s parent or parents and all other persons who are entitled to timesharing with, or access to, the child. [see Fla. Stat. § 61.13001(2)(a)]. The relocation statute does not expressly state that nonparents with whom a child resides pursuant to court order must also agree to relocation by a parent or other person, but logically, such nonparents are included in that group [seeFla. Stat. § 61.13001(1)(c) (definition of “other person”)].

An agreement must (1) reflect the consent of all the signators to the relocation; (2) define a timesharing or access schedule for the nonrelocating parent and each other person who is entitled to timesharing with, or access to, the child; and (3) describe, if necessary, any transportation arrangements related to the timesharing or access schedule [see Fla. Stat. § 61.13001(2)(a)1.-3.].

A written agreement allowing relocation must be ratified by the court [see Fla. Stat. § 61.13001(2)(b)]. No hearing is necessary unless a party to the agreement requests one in writing within 10 days after the date on which the agreement is filed with the court. If a hearing is not timely requested, the court must presume that the relocation is in the best interests of the child and may ratify the agreement without an evidentiary hearing [see Fla. Stat. § 61.13001(2)(b)].

The Florida Supreme Court has approved a form for a written agreement allowing relocation [see Fla. Fam. L. R. P. 12.950a; § 32.220].

[d] Obtaining Court Order

[i] Petition to Relocate

[A] Contents of Petition. If a parent or other person [see [b], above (definitions)] who desires to relocate fails to obtain an agreement to the relocation from the other parent and any other person who is entitled to timesharing with, or access to, the child [see [a], [c], above], the parent or other person who wants to relocate must file a petition to relocate with the court and serve it on the other parent and any other person who is entitled to timesharing with, or access to, the child [see Fla. Stat. § 61.13001(3); see also Fla. Fam. L. R. P. Form 12.950(c), 12.950(d); §§ 32.222, 32.223]. The petition must be signed under oath or affirmation, under penalty of perjury, and must contain the following information [see Fla. Stat. § 61.13001(3)(a); see also 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(3)]:

  1. The location of the intended new residence, including the state, city, and specific physical address, if known [see § 61.13001(3)(a)1., Fla. Stat.].
  2. The mailing address of the intended new residence, although this may be omitted if it is the same as the known physical address [see § 61.13001(3)(a)2., Fla. Stat.].
  3. The home telephone number of the intended new residence, if that number is known [see § 61.13001(3)(a)3., Fla. Stat.].
  4. The date of the intended move or proposed relocation [see § 61.13001(3)(a)4., Fla. Stat.].
  5. A detailed statement of the specific reasons for the proposed relocation, and if one of the reasons is a job offer that has been reduced to writing, the written job offer must be attached to the petition [see § 61.13001(3)(a)5., Fla. Stat.].
  6. A proposed timesharing or access schedule and proposed transportation arrangements that are necessary to effectuate the schedule [see § 61.13001(3)(a)6., Fla. Stat.].
  7. Substantially the following statement, in all capital letters and in the same size type, or larger, as the type in the remainder of the petition [see § 61.13001(3)(a)7., Fla. Stat.]: A RESPONSE TO THE PETITION, OBJECTING TO RELOCATION, MUST BE MADE IN WRITING, FILED WITH THE COURT, AND SERVED ON THE PARENT OR OTHER PERSON SEEKING TO RELOCATE WITHIN 20 DAYS AFTER SERVICE OF THIS PETITION TO RELOCATE. IF YOU FAIL TO TIMELY OBJECT TO THE RELOCATION, THE RELOCATION WILL BE ALLOWED, UNLESS IT IS NOT IN THE BEST INTERESTS OF THE CHILD, WITHOUT FURTHER NOTICE AND WITHOUT A HEARING.

A failure to include in the petition the sixth item listed above a proposed timesharing or access schedule and a proposal for transportation to effectuate the schedule–can have significant adverse consequences. Specifically, failure to include that information renders the petition “legally insufficient” unless (1) a valid order abating, terminating, or restricting timesharing or access exists; or (2) other good cause exists that predates the petition [see § 61.13001(3)(a)6., Fla. Stat.].

If the parent or other person who is seeking to relocate, or the child, is entitled to prevent public disclosure of location information under a public records exemption, the trial court may enter any order necessary to modify the disclosure requirements of the relocation statute, so as to comply with the public records exemption [see Fla. Stat. § 61.13001(4)].

A parent or other person who is seeking to relocate has a continuing duty to update and serve the information provided in the petition when the updated information becomes known to the petitioner [see Fla. Stat. § 61.13001(3)(c)].

The Florida Supreme Court has approved a form for a petition for dissolution of marriage, which includes a request to relocate [Fla. Fam. L. R. P.12.950(c); see § 32.222], as well as supplemental petition for relocation to be used after a final judgment of dissolution or paternity has been entered [Fla. Fam. L. R. P.12.950(d); see § 32.223],

[B] Filing and Service of Petition. A parent or other person who has prepared a petition to relocate [see [A], above] must serve the petition on the other parent and any other person who is entitled to timesharing with, or access to, the child [see Fla. Stat. § 61.13001(3)(b)].

If there is a pending court action regarding the child, service of process may be effected according to court rule. Otherwise, service of process must be performed according to Florida Statutes Chapters 48 and 49, or via certified mail, restricted delivery, return receipt requested [Fla. Stat. § 61.13001(3)(b)].

A parent or other person who serves a petition to relocate has a continuing duty to serve updated information when the updated information becomes known to him or her [Fla. Stat. § 61.13001(3)(c)].

[ii] Objections to Relocation. If a parent or other person who desires to relocate with a child serves a petition to relocate on a parent or other person who is entitled to timesharing with, or access to, the child [see [i], above], and the person who is served desires to object to the relocation, he or she must serve a verified answer objecting to the proposed relocation within 20 days after service of the petition. The written objection must include the specific factual basis supporting the objection, and must include a statement of the amount of participation or involvement the objecting party currently has, or has had, in the life of the child [see Fla. Stat. § 61.13001(3)(a)7(5); see also 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(3)(5)].

If a parent or other person who is served with a petition to relocate fails to object, or objects in an untimely manner and fails to show good cause for the untimely objection, the court must presume that the relocation is in the child’s best interests and that the relocation should be allowed [see Fla. Stat. § 61.13001(3)(d)]. Accordingly, the court must enter an order (1) allowing the relocation, (2) specifying that the order is being entered as a result of the untimely response or failure to respond to the petition, and (3) adopting the timesharing or access schedule and transportation arrangements set forth in the petition. The order may be issued in an expedited manner without an evidentiary hearing [see Fla. Stat. § 61.13001(3)(d)].

If a proposed relocation is uncontested, the parent or other person who is proposing the relocation will not be charged a fee for filing the petition to relocate or for the court’s issuance of an order [see Fla. Stat. § 28.241(1)(b)].

If a parent or other person who is served with a petition to relocate files a timely response in which he or she objects to the relocation, the parent or other person who is proposing the relocation may not relocate, and must proceed to a temporary hearing or trial and obtain the court’s permission to relocate prior to relocating [see Fla. Stat. § 61.13001(3)(d)].

[iii] Priority of Contested Relocation Hearing. An evidentiary hearing or trial on a request for a temporary or permanent order allowing relocation must be accorded priority on the court’s calendar. If a motion seeking temporary relocation is filed, a hearing must be held no later than 30 days after the motion is filed unless good cause exists for scheduling a later hearing. If a notice to set the matter for non-jury trial is filed, the trial must be held no later than 90 days after the notice is filed, unless good cause justifies a later trial date [see Fla. Stat. § 61.13001(10); see also 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(10)].

[iv] No Presumption For or Against Temporary or Permanent Relocation. Like its predecessors, the 2009 relocation statute prohibits the court from applying a presumption for or against a request to relocate, even if the relocation will materially affect a parent or other person’s existing schedule of contact, access, or timesharing [see Fla. Stat. § 61.13001(7); see also 2009 Fla. Laws, ch. 2009-180, § 4; 2008 Fla. Laws, ch. 2008-61, § 9; 2006 Fla. Laws, ch. 2006-245, § 2; 1997 Fla. Laws, ch. 97-242, § 1]. In making a decision as to whether to allow relocation, the trial court must consider statutory factors set forth in the relocation statute [see Fla. Stat. § 61.13001(7); see also [v], below].

Finally, like the 2006 and 2008 versions of the relocation statute, the 2009 version expressly states that the burden of proof is on the parent or other person requesting relocation to establish by a preponderance of the evidence that relocation is in the best interests of the child [see Fla. Stat. § 61.13001(8); see also [vi], below].

[v] Factors Applicable to Determining Temporary or Permanent Relocation Issue. There is a relatively detailed list of factors that a trial court must consider in determining whether to permit a temporary or permanent relocation. The factors are as follows [see Fla. Stat. § 61.13001(7)(a)-(k); see also 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(7)(a)-(k)]:

  1. The nature, quality, extent of involvement, and duration of the child’s relationship with (1) the parent or other person who is proposing the relocation; (2) the child’s other parent or the child’s parents who is or are not relocating; (3) any nonparent (“other person”) who is entitled to timesharing with, or access to, the child and who is not relocating; (4) any nonparent with whom the child resides pursuant to court order, and who is not relocating; (5) the child’s siblings and half-siblings; and (6) any other significant persons in the child’s life [see Fla. Stat. § 61.13001(7)(a); see also [a]-[b], above (applicability of relocation statute to “parent” and “other person,” and definitions of those terms)].
  2. The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, including consideration of any special needs of the child [seeFla. Stat. § 61.13001(7)(b)].
  3. The quality and practicality of the proposed substitute contact between the child and the nonrelocating parent, parents, or nonparents, considering specifically (1) the feasibility of preserving the relationship between the child and the nonrelocating parent, parents, or nonparents through substitute arrangements that account for the logistics of contact, access, and timesharing, as well as the financial circumstances of the parties; (2) whether the substitute arrangements are sufficient to foster a continuing, meaningful relationship between the child and the nonrelocating parent, parents, or nonparents; and (3) the likelihood of compliance with the substitute arrangements by the parent or other person who is proposing to relocate after he or she is out of the court’s jurisdiction [see Fla. Stat. § 61.13001(7)(c); see also Fla. Stat. § 61.13001(9)(a); [f], below (specification of modes of contact between child and nonrelocating parent or nonrelocating other person in order granting relocation)].
  4. The child’s preference, considering the age and maturity of the child [see Fla. Stat. § 61.13001(7)(d)].
  5. Whether the relocation will enhance the general quality of life for the parent or other person who is proposing to relocate and the child, including, but not limited to, whether the relocation will enhance the financial circumstances, emotional circumstances, or educational opportunities of the parent or other person and the child [see Fla. Stat. § 61.13001(7)(e)].
  6. The reasons underlying the request for relocation by the petitioner-parent or other person who is seeking relocation, and the reasons that each opposing parent or other person has for objecting to the relocation [see Fla. Stat. § 61.13001(7)(f)].
  7. (1) The current employment and economic circumstances of the parent or other person who is proposing to relocate, as well as the current employment and economic circumstances of the child’s parent or parents who are not relocating, and any other person who is entitled to timesharing with, or access to, the child and who is not relocating; and (2) whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person who is proposing to relocate [see Fla. Stat. § 61.13001(7)(g)].
  8. Whether the parent or other person who is seeking the relocation is doing so in good faith, and the extent to which an objecting parent has fulfilled his or her financial obligations–including child support, spousal support, and marital property and marital debt obligations–to the parent or other person who is seeking relocation [see Fla. Stat. § 61.13001(7)(h)].
  9. The career and other opportunities available to the objecting parent or other person if the relocation is allowed [see Fla. Stat. § 61.13001(7)(i)].
  10. Any history of substance abuse or domestic violence as defined in Florida Statutes Section 741.28 or Florida Statutes Section 39.806(1)(d), by either parent, including the severity of such conduct and the failure or success of any attempts at rehabilitation [see Fla. Stat. § 61.13001(7)(j)].
  11. Any other factor affecting the child’s best interests, or any factor set forth in Florida Statutes Section 61.13 [see Fla. Stat. § 61.13001(7)(k)].

The statutory relocation factors set forth in the 2008 and 2009 versions of the relocation statute are nearly identical to the factors set forth in the 2006 version of the statute, and are similar to some of the factors set forth in the 1997 version of the statute [see 2006 Fla. Laws, ch. 2006-245, § 2; 1997 Fla. Laws, ch. 97-242, § 1]. There are not many district court opinions that applied the previous relocation factors. However, several such appellate opinions do exist. Of those, two held that allowing relocation was improper [see Paskiewicz v. Paskiewicz, 967 So. 2d 277 (Fla. 3d DCA 2007) ; Muller v. Muller, 964 So. 2d 732 (Fla. 3d DCA 2007) ]. Another court held that allowing relocation was proper [see Norris v. Heckerman, 972 So. 2d 1098 (Fla. 1st DCA 2008)].

In Muller v. Muller [964 So. 2d 732 (Fla. 3d DCA 2007) ], the Third District Court of Appeal reversed a trial court’s decision to allow relocation by a custodial mother to Colorado. The Third District (1) identified specific facts relied on by the trial court that did not satisfy the statutory factors to which they were related by the lower court, and (2) held there was no substantial, competent evidence to support the trial court’s decision [see Muller v. Muller, 964 So. 2d 732 (Fla. 3d DCA 2007) ]. The district court explained the evidentiary deficiency with regard to each statutory factor as follows [see Muller v. Muller, 964 So. 2d 732 (Fla. 3d DCA 2007) ]:

  • With regard to the first factor, which requires a trial court to consider “[t]he nature, quality, extent of involvement, and duration of the child’s relationship” with each party and with other persons in the child’s life [see § 61.13001(7)(a), Fla. Stat.], the trial court had found that the mother was more involved in caring for the child as an infant and the father had assumed a greater role when the child was a little older. In addition, the lower court observed that the maternal grandparents in Colorado were not employed and the paternal grandparents in Florida were employed. The Third District held that these facts by themselves did not support a finding that the proposed relocation would improve the nature, quality, extent of involvement, and duration of the child’s relationship with either party or with other persons in the child’s life.
  • Regarding the second statutory relocation factor, which mandates consideration of the child’s needs and the impact of relocation on the child [see § 61.13001(7)(b), Fla. Stat.], the Third District in Muller related that the trial court had focused almost exclusively on the fact that the child would be cared for by the maternal grandmother in Colorado instead of receiving daycare services in Florida. This fact was insufficient to support relocation under the second factor, the appeals court indicated, because the trial court had not considered the very young age of the child or any other impact the relocation would have on the child’s physical, educational, and emotional development.
  • In the Third District’s view in Muller, the third statutory factor, which requires determination of the practicality and quality of substitute contact between the child and the noncustodial parent or other person, was not satisfied by the lower court’s conclusory finding that it would be feasible to foster a meaningful relationship between the father and child after the relocation. To the contrary, the appeals court stated, the record clearly showed the hardships and complications of traveling between Florida and the town to which the mother wanted to move–Grand Junction, Colorado. To exercise visitation in Grand Junction, the father would have to travel four hours by air to Denver, which he could not easily afford given his monthly net income of approximately $1,300. Moreover, the record showed that travel to Grand Junction from Denver entailed a four-hour drive. In sum, to have any direct contact with the child the father would be required to take off several days, if not weeks, from work [see Segarra v. Segarra, 947 So. 2d 543, 546 (Fla. 3d DCA 2006) ].
  • The Muller court held that the trial court had properly found the fourth relocation factor, the child’s preference, to be inapplicable because the child was two years old.
  • The trial court in Muller had considered the fifth, sixth, and seventh factors in combination [see § 61.13001(7)(e) (whether relocation will enhance parent’s and child’s general quality of life, including whether relocation will enhance financial or emotional circumstances or educational opportunities of both of them, (f) (parent’s reasons for seeking to relocate), (g) (current employment and economic circumstances of parent who desires to relocate, child’s other parent, and any other person who is entitled to timesharing with the child, and whether proposed relocation is necessary to improve economic circumstances of parent who desires to relocate), Fla. Stat.]. The trial court had found that the proposed relocation would enhance the general quality of life for both the mother and the child because the mother would no longer have to work as a store clerk, would spend more time with the child, and would be attending nursing school. However, according to the Third District, the record revealed that the mother did not have any job offer in Colorado and had not applied to any nursing school in Grand Junction. Moreover, during the time the mother had lived in Colorado with the child, the mother had lost her job. Further, there was no evidence that the mother would earn a higher income, work fewer hours, or be in a better position to spend more time with the child. Thus, the trial court had relied on the mother’s hopes and expectations without requiring proof of either employment prospects or educational enrollment to support its findings under the fifth, sixth, and seventh statutory factors [see Cecemski v. Cecemski, 954 So. 2d 1227, 1229 (Fla. 2d DCA 2007) (because mother testified that she had not applied for any jobs in Louisiana, evidence did not support trial court’s finding that quality of life for mother and child would improve there)]; Segarra v. Segarra, [947 So. 2d 543, 546 (Fla. 3d DCA 2006)(evidence that custodial mother did not have job offer in Bryceville, Florida supported trial court’s denial of relocation)];Botterbusch Botterbusch, 851 So. 2d 903, 904 (Fla. 4th DCA 2003) (evidence supported trial court’s finding that quality of life for mother and child would improve because record reflected that mother had accepted job offer with United States Customs Department and would earn more money and work fewer hours in her new position)].

After Muller, the Third District again addressed the relocation statute in Paskiewicz v. Paskiewicz [967 So. 2d 277 (Fla. 3d DCA 2007) ]. In Paskiewicz, the Third District reversed a trial court’s approval of a mother’s request for modification of rotating custody so she could have primary residential custody of the parties’ children in Virginia. The court based its decision on the custodial mother’s failure to show a substantial change in circumstances, and cited its prior decision in Bazan v. Gambone[924 So. 2d 952 (Fla. 3d DCA 2006) ] to support the holding. Specifically, the district court agreed with the father that the mother’s desire to move for financial reasons was not by itself a substantial change in circumstances that warranted a change in the existing custodial arrangement [see Bazan v. Gambone, 924 So. 2d 952 (Fla. 3d DCA 2006) ]. However, citing Section 61.13001(7), the Third District further remarked that if the original custody arrangement had not been a rotating custody arrangement, the mother’s reasons for wanting to move might have been sufficient to justify relocation [see Paskiewicz v. Paskiewicz, 967 So. 2d 277 (Fla. 3d DCA 2007) ; see also [iv], below (discussion about uncertainty regarding requirements for postjudgment order allowing relocation)].

Finally, in Norris v. Heckerman [972 So. 2d 1098 (Fla. 1st DCA 2008)] , the First District Court of Appeal approved a trial court’s decision to allow a custodial wife to relocate to Illinois with the parties’ children pursuant to the factors enumerated in Section 61.13001(7). Although the trial court had not made “certain critical findings regarding several of the statutory factors,” according to the district court, the omission was the result of the parties’ failure to present evidence concerning those factors. Therefore, based on the limited evidence before the trial court, the First District held that the lower court had properly exercised its discretion in granting the mother’s request to relocate [see Norris v. Heckerman, 972 So. 2d 1098 (Fla. 1st DCA 2008) ].

Under the 2006 and 1997 versions of the relocation statute [see 2006 Fla. Laws, ch. 2006-245, § 2; 1997 Fla. Laws, ch. 97-242], as well as under the 2009 and 2008 versions [see 2009 Fla. Laws, ch. 2009-180, § 4; 2008 Fla. Laws, ch. 2008-61, § 9], a trial court deciding whether to allow relocation must consider whether proposed substitute contact between the child and the objecting parent or other person will be adequate “to foster a continuing meaningful relationship” between the child and the nonrelocating parent or other person [see Fla. Stat. § 61.13001(7)(c)]. A conflict that existed under the prior statutes and that remains under the 2009 statute is what constitutes a continuing, meaningful relationship. One appeals court interpreting the 1997 statute held that a continuing, meaningful relationship was to be determined on its own merits, apart from the existing schedule of visitation [see, e.g., Fredman v. Fredman, 917 So. 2d 1038, 1041 (Fla. 2d DCA 2006) ]. In contrast, another appeals court indicated that a court must consider whether substitute visitation would allow the same quantity and quality of visitation as the existing schedule [see Shafer v. Shafer, 898 So. 2d 1053, 1057-1058 (Fla. 4th DCA 2005) ]. Because the meaning of “continuing, meaningful relationship” remains undefined in the 2009 statute [see Fla. Stat. § 61.13001(7)(c)], the conflict in the cases seemingly remains relevant.

Florida Statutes Section 61.13003 provides that a trial court’s determination as to whether to allow a custodial parent to relocate with the parties’ child should not be based solely on the availability or lack of availability of electronic communication as a means of contact between the noncustodial parent and the child [see § 61.13003(6), Fla. Stat.; see also [10], below (discussion of electronic communications statute)].

A trial court may grant a proposed relocation only if it is in the child’s best interests at the time of the final hearing. This “present-based” analysis involves examining the statutory relocation factors as they relate to the child’s and the parties’ circumstances at the time of the hearing [ Arthur v. Arthur, 35 Fla. L. Weekly S 38,54So. 3d 454, 2010 Fla. LEXIS 41 (Fla. Jan. 14, 2010)] . Thus, a trial court may not properly grant a relocation that will be delayed for an extended time, because the child’s and parties’ circumstances quite possibly will change and the child’s best interests may not be served by relocation at that time [see Arthur v. Arthur, 35 Fla. L. Weekly S 38, 54So. 3d 454, 2010 Fla. LEXIS 41 (Fla. Jan. 14, 2010) (trial court erred in granting relocation that was to occur 20 months later, because any of the statutory relocation factors could change “within the extended time period given by the court before relocation”)]. Instead, a trial court’s decision whether to allow such a relocation must be determined in postjudgment modification proceedings. At the time of those proceedings, the statutory relocation factors must be considered in relation to the then-current circumstances of the child and the parties, and the parent who desires to relocate bears the burden of proving that relocation would be in the child’s best interests as of the time of the modification hearing [ Arthur v. Arthur, 35 Fla. L. Weekly S 38, 54 So. 3d 454, 2010 Fla. LEXIS 41 (Fla. Jan. 14, 2010) ; see also [vi], below (burden of proof); ch. 81, Modification of Parental Responsibility and Timesharing].

[vi] Burden of Proof at Temporary or Permanent Hearing. If a response containing an objection to relocation is filed, the parent or other person who is seeking to relocate may not relocate, and must proceed to a temporary hearing or trial and obtain the court’s permission to relocate [see Fla. Stat. § 61.13001(3)(e); see also 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(3)]. There is no presumption for or against relocation [see Fla. Stat. § 61.13001(7); see also [iv], above], but the parent or other person who is seeking to relocate has the burden to prove by a preponderance of the evidence that relocation is in the best interests of the child. If the parent or other person satisfies that burden of proof, the burden then shifts to the parent or nonparent who has objected to show by a preponderance of theevidence that the proposed relocation is not in the child’s best interests [see Fla. Stat. § 61.13001(8); see also 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(8)].

The 2009 relocation statute amendments did not clarify the standard for modification to allow relocation [see 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001]. However, other 2009 parenting legislation mandates that a petitioner for modification of a parenting plan or timesharing schedule show a substantial, material, and unanticipated change of circumstances [see 2009 Fla. Laws, ch. 2009-180, § 3, amending Fla. Stat. § 61.13(2)(c)]. In addition, the petitioner must establish that modification would be in the child’s best interests [see 2009 Fla. Laws, ch. 2009-180, § 3, amending Fla. Stat. § 61.13(3)].

An appeals court that addressed modification under a pre-2009 version of the relocation statute held that a substantial change in circumstances must be shown to obtain modification of a rotating custody arrangement to allow relocation [see Paskiewicz v. Paskiewicz, 967 So. 2d 277 (Fla. 3d DCA 2007) ].

If a trial court grants a future relocation based on present circumstances, the court improperly shifts the burden of proof from the relocating party to the nonrelocating party, who will be required to show a substantial change in circumstances in later modification proceedings [ Arthur v. Arthur, 35 Fla. L. Weekly S 38, 54 So. 3d 454, 2010 Fla. LEXIS 41 (Fla. Jan. 14, 2010) ; see also ch. 81, Modification of Parental Responsibility and Timesharing].

[e] Temporary Orders

[i] Temporary Order Restraining Relocation or Ordering Return of Child. Under the relocation statute, a trial court may grant a temporary order restraining relocation of the child or ordering return of the child if the court finds that any of the following circumstances exist [see Fla. Stat. § 61.13001(6)(a); 2009 Fla. Laws, ch. 2009-180, § 4; see also Fla. Fam. L. R. P. Form 12.950(f); § 32.225]:

  1. The required petition to relocate did not comply with statutory requirements pertaining to contents or execution, or was not served in a timely manner [see § 61.13001(6)(a)1., Fla. Stat.; see also [d][i], above (discussing contents, execution, and service of petition to relocate)].
  2. The child has been relocated without written agreement by the required persons or without the court’s approval [see § 61.13001(6)(a)2., Fla. Stat.; see also [a], above (discussing requirement of agreement or court order)].
  3. The evidence presented at the preliminary hearing makes it appear likely that on final hearing, the court will not approve the relocation [see § 61.13001(6)(a)3., Fla. Stat.].

Instead of a temporary order restraining or ordering return of the child, the trial court may order other appropriate relief [Fla. Stat. § 61.13001(6)(a)].

[ii] Temporary Order Permitting Relocation. The court may grant a temporary order permitting relocation pending final hearing if the court finds that both of the following circumstances exist [see Fla. Stat. § 61.13001(6)(b); see also 2009 Fla. Laws, ch. 2009-180, § 4; see also Fla. Fam. L. R. P. Form 12.950(f); § 32.225]:

  1. The petition to relocate was properly filed and otherwise complied with the statutory requirements pertaining to contents, execution, and service [see § 61.13001(6)(b)1., Fla. Stat.; see also [d][i], above (discussing contents, execution, and service of petition to relocate)].
  2. The evidence presented at the preliminary hearing makes it appear likely that on final hearing, the court will approve the relocation, and this finding is supported by the same factual basis as would be necessary to support allowing relocation in a final judgment [see § 61.13001(6)(b)2., Fla. Stat.].

If the court issues a temporary order authorizing a parent or other person to relocate with the child before a final judgment is rendered, the court may not give any weight to the temporary relocation as a factor in reaching its final decision concerning the relocation [Fla. Stat. § 61.13001(6)(c)]. In Wraight v. Wraight, 71 So. 3d 139 (Fla. 5th DCA 2011) , the Fifth District Court of Appeal considered a permanent order in which the trial court granted a mother’s request to relocate with the parties’ child to the United Kingdom. The trial court had earlier granted the mother permission to temporarily relocate to the United Kingdom with the child, and the mother had done so. The order permitting permanent relocation contained a number of findings that described the child’s good academic performance and family contacts in the United Kingdom; the order also contained two express findings that another relocation would not be in the child’s best interests. Nonetheless, the Fifth District held that there was no violation of Section 61.13001(6)(c)’s ban on including temporary relocation as a factor in deciding permanent relocation [see Wraight v. Wraight, 71 So. 3d 139 (Fla. 5th DCA 2011) ].

The Fifth District in Wraight also discussed the lack of authority regarding Section 61.13001(6)(c), noting that there is neither case law that interprets Section 61.13001(6)(c) nor legislative history that explains it. Further, the district court described as “odd[]” the fact that the relocation statute requires a trial court to weigh the same factors in making a temporary decision as the court must weigh in making a permanent relocation decision [see Fla. Stat. § 61.13001(6)(b) (erroneously cited-to by district court as Fla. Stat. § 61.13001(6)(c)); see also Fla. Stat. § 61.13001(7) (relocation factors)]. The Fifth District speculated that perhaps Section 61.13001(6)(c)’s prohibition against considering any temporary relocation in deciding whether to allow permanent relocation is designed to assure that the facts and issues pertinent to a final relocation decision “will be fully examined de novo at the final hearing.” The district court also speculated that Section 61.13001(6)(c) may be designed to temper unfairness that can be perceived by an objecting parent if the custodial parent has been allowed to temporarily relocate with the child and then use evidence of the relocation’s success to gain an advantage over the objecting parent relocation [seeWraight v. Wraight, 71 So. 3d 139 (Fla. 5th DCA 2011) ].

In addition, if temporary relocation of the child is permitted, the court may require the person relocating the child to provide reasonable security, financial or otherwise, and guarantee that court-ordered contact with the child will not be interrupted or interfered with by the relocating parent or other person [Fla. Stat. § 61.13001(6)(d)].

[f] Specification of Contact and Transportation Methods in Order Allowing Temporary or Permanent Relocation. Under the 2009 relocation statute, a trial court that grants a temporary or permanent request to relocate may designate methods of contact between the child and a nonrelocating parent or other person [see Fla. Stat. § 61.13001(9)(a); see also 2009 Fla. Laws, ch. 2009-180, § 4]. More specifically, the court may order contact through access, timesharing, telephone, the Internet, web-cam, and other arrangements that are (1) in the child’s best interests, (2) financially affordable by the parties, and (3) sufficient to ensure that the child has frequent, continuing, and meaningful contact with the nonrelocating parent or other person [see Fla. Stat. § 61.13001(9)(a); see also Fla. Stat. § 61.13001(7)(c); [d][v], above (feasibility of preserving relationships between child and nonrelocating parent or other person as consideration in deciding whether to allow relocation)].

If appropriate, the trial court must specify how the transportation costs will be allocated between the parents and other persons who are entitled to contact, access, or timesharing. The court may also adjust child support after considering the costs of transportation, the respective net incomes of the child’s parents, and the child support guidelines statute [Fla. Stat. § 61.13001(9)(b); see also Ch. 33, Child Support].

[g] Consequences of Failure to Serve Petition to Relocate. If a parent or other person relocates without complying with the statutory provisions regarding service of a petition to relocate [see [d][i], above], he or she is subject to contempt and other proceedings to compel the return of the child [Fla. Stat. § 61.13001(3)(e); see 2009 Fla. Laws, ch. 2009-180, § 4; see also Fla. Fam. L. R. P. Forms 12.950(g), 12.950(h); §§ 32.226, 32.227]. In addition, the failure to comply may be considered by the court in any initial or postjudgment action in which a petitioner seeks a determination or modification of a parenting plan or modification of a timesharing schedule or access schedule. More specifically, the court may consider the failure to comply with the statutory petition and service requirements as any of the following [see Fla. Stat. § 61.13001(3)(e)]:

  1. A factor in determining whether to allow relocation of the child [see § 61.13001(3)(e)1., Fla. Stat.].
  2. A factor in determining whether the parenting plan or timesharing or access schedule should be modified [see § 61.13001(3)(e)2., Fla. Stat.].
  3. A basis for ordering the temporary or permanent return of the child [see § 61.13001(3)(e)3., Fla. Stat.].
  4. Sufficient cause to order the parent or other person who is seeking to relocate to pay reasonable expenses and attorneys’ fees incurred by the party objecting to the relocation [see § 61.13001(3)(e)4., Fla. Stat.].
  5. Sufficient cause to order the parent or other person who is seeking to relocate to pay reasonable attorneys’ fees and costs, including interim travel expenses, that are incidental to the objecting party’s visitation or securing return of the child [see § 61.13001(3)(e)5., Fla. Stat.].
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Should I Tell My Spouse or Significant Other that I am Filing for Divorce or Custody or that I Hired a Lawyer

This is a very common question that I get when clients consult with me regarding a divorce, child custody case or other family law matter.  Of course, filing a divorce or custody matter is a very significant event in your life and most people feel that they should  tell the other party  that they are  going to file a lawsuit. My general advice to most of my clients is not to tell the other party.  The reason for this is:

  1.  The other party starts changing their behavior like closing bank accounts, starting situations that may result in domestic violence situations, wanting more time with the children, etc.
  2. It results in additional fighting, arguments and general discord in the family; These fights typically go nowhere other than nonsensical arguments about issues that my not be relevant to the resolution of the case.
  3.  The other party may attempt to hide and avoid service of process to delay the action while they move assets or actually take off with the children to another state.

We have had several cases lately where exactly these types of behaviors have occurred.  The results have been additional time and expense to the client in either locating the other party for service of process, domestic violence injunctions filed by the other party to get an upper hand in the proceeding or the actual waste and dissipation of marital assets.  Another important point to remember is that once a  family law case is filed in the 19th Judicial Circuit,  the court usually enters what is called a Standing Temporary Domestic Relations Order that is supposed to prevent this type of behavior. It goes into effect on the Petitioner once the case is filed. It goes into effect on the Respondent, once they have been served.  Thus, filing the case and getting it served on the other party is of paramount importance.

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