Parties that are going through a divorce have equal rights to the minor children. Neither the Husband or the Wife have a superior claim or rights to the minor children. The Courts seek to keep a strong parent/child relationship during the course of a Divorce and after. It is public policy that each minor child has frequent and continuing contact with both parents after the parents separate or divorce. If you have a child without being married, then in most instances, the biological Father does not have any visitation rights with the minor children. If the Father has lived in the same home with the Mother and his children their entire lives and then one day the Mother leaves; in most instances he has no rights to see them until Paternity is established with the Court.
Most people are familiar with the words custody and visitation; the State of Florida refers to that as Time Sharing. Whenever there is a minor child involved in a Divorce or custody issue; Time-Sharing is a major concern for the Court. The Court will want to know what the specific Time-Sharing plan is for the child as well as how all of the child’s needs will be met in a Parenting Plan. The Court will require a Parenting Plan to include this minimum information:
- Describe in adequate detail how the parents will share and be responsible for the daily tasks associated with the upbringing of the child;
- Include the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent;
- Designate who will be responsible for:
- Any and all forms of health care. If the court orders shared parental responsibility over health care decisions, the parenting plan must provide that either parent may consent to mental health treatment for the child.
- School-related matters, including the address to be used for school-boundary determination and registration.
- Other activities; and
- Describe in adequate detail the methods and technologies that the parents will use to communicate with the child.
DO I GET TO MAKE DECISIONS REGARDING MY CHILDREN?
The Courts begin with the premise that the parties shall share Parental Responsibility of the minor child. Which means that both parents must confer and jointly agree upon major decisions regarding the child’s life and welfare. If the Court finds that having shared Parental Responsibility is detrimental to the child then they can order one party to have Sole Parental Responsibility. In either case, all parties have access to the child’s records and information, including, but not limited to, medical, dental, and school records. No parent has the right to keep the other parents from full knowledge and access to the child’s life.
In determining, how the court establishes a Parenting Plan, they will evaluate the following factors and decide what is in the Best Interest of Child:
- 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.
- The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
- 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.
- The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
- The geographical 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.
- The moral fitness of the parents.
- The mental and physical health of the parents.
- The home, school, and community record of the child.
- The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
- 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.
- 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 bed time.
- 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 parents to adopt a unified front on all major issues when dealing with the child.
- 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. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interest of the child.
- Evidence that either parent has knowingly provided false information to the court regarding and prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
- 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.
- The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
- The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
- 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.
- The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
- Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
All of the factors stated above, guide the Court in weighing what is truly in the Best Interest of the Child. Most of the factors outlined above reflect common sense parenting. The Court is concerned with how the child is affected by the issues at hand, not the parents. Your primary responsibility is to place the child’s needs above your own and do what is in the Best Interest of the Child. The Court will view the emotional, physical, and mental health and well-being of your child as paramount. The Court will determine who will be able to place the needs of the child above their own needs, while being able to be reasonable and co-parent with the other party.
It is extremely important that you retain an experienced attorney who has drafted and negotiated an extensive amount of Parenting Plans. There are many issues that can be easily negotiated in a Parenting Plan, but in many cases the parties are unable to agree as to certain aspects, such as the actual timesharing plan, which address the parties will use for school designation, or even what school the child will attend. The issue of Time-Sharing is one of the most heated and litigated issues in Family Law. When the parties cannot agree on certain issues of a Parenting Plan, then the case will need to be decided the Court during a Trial. The Court will weigh all of the factors listed above, and decide which factor is in one party’s favor as well as how much weight the Court gives to any particular factor. Which is exactly why you need an attorney with the right strategies and knowledge to maximize your rights; please call or contact my office to schedule a consultation to thoroughly discuss all of your specific goals and needs.
WHAT IS THE VISITATION SCHEDULE?
In the Seventh Judicial Circuit there are local guidelines which delineate when the parties shall have the minor child. The local guidelines are the old and archaic timesharing schedule that most people are familiar with. One parent will have the child a majority of the time while the other parent shall have: every other weekend, one evening during the week (but not an overnight) and sharing of holidays/summer break. When negotiating a Time Sharing schedule or arguing for a specific schedule at Trial; you need an attorney prepared to help you maximize your Time Sharing. In many cases, you can be as creative as your schedule permits. There can be shared Time Sharing schedules where the parties alternate the child on a week on/week off basis; split weeks where one party has the child 4 days one week and 3 days the next week; one party gets every Monday and Tuesday, the other party has every Wednesday and Thursday, and the alternate weekends. Many parents do not have a typical job where they work Monday through Friday from 9:00a.m. to 5:00 p.m. That is when it is imperative you hire an experienced and creative attorney to craft a Time Sharing schedule to maximize your time with your child. Whether you are a firefighter, police officer, member of the military, bartender or lineman; I can help you. Please call or contact my office to schedule a consultation to thoroughly discuss all of your specific goals and needs.
RELOCATION OF CHILD
AM I ABLE TO MOVE?
If you are seeking to move within fifty (50) miles from your residence at the time of the last order regarding time sharing, then you are free to relocate without court intervention. If you are seeking to move more than fifty (50) miles from your residence at the time of the last order regarding time sharing, then you will need an agreement with opposing party or seek an Order from the Court granting your relocation.
If there is an agreement between the parties there must be a signed written agreement filed with the Court which reflects the consent to relocation by the nonrelocating party, as well as:
- Defines the new Time Sharing for the nonrelocating parent and any other person entitled to Time Sharing.
- Describes, if necessary, any transportation arrangements related to access or Time Sharing.
- Provide the Court with an Order within ten (10) days the Agreement is filed with the Court.
If there is no agreement between the parents as to Relocating outside of the magic fifty (50) miles, then relocating party is required to file a Petition to Relocate. This type of Petition is very technical and must strictly comply with the Florida Statute or will be dismissed by the Court.
A Petition for Relocate must be signed under oath by the party seeking to relocate and served upon the other party. The Petition must contain the following:
- Description of the location of the intended new residence; including city, state, and physical address, if known.
- Mailing address of the intended new residence, if not the same as physical address, if known.
- The home telephone number of the intended new residence, if known.
- The date of the intended move or proposed relocation.
- A detailed statement of the specific reasons for the proposed relocation. If one of the reasons is based upon a job offer that has been reduced to writing, the written job offer must be attached to the petition.
- A proposal for a revised schedule for access and Time Sharing with a proposal for transportation arrangements necessary for Time Sharing.
- Provide a statement that opposing party has twenty (20) days to file a written objection from date of being serve or the Relocation will be allowed.
If the other parent files a timely objection to the Petition to Relocate then the party may not relocate and must proceed to a temporary hearing or trial and obtain court permission to relocate. An Answer objecting to the proposed Relocation must be signed/notarized and include specific factual basis supporting the reasons for seeking the prohibition of the Relocation, including a statement of the amount of participation or involvement the objecting party currently has or has had in the life of the child.
WHAT HAPPENS IF I MOVE WITHOUT COURT ORDER?
If you choose to move, whether it was a last-minute decision that was not in your control; reassignment at work, change of station with the military, or financial hardship; you can be subjected to being found in Contempt and compelled to return the minor child. The Court can take into account that action during an initial or post judgment action seeking a determination or modification of the parenting plan, access to child, or time-sharing schedule. When the court is making their final ruling as to the Relocation they will consider that actions as:
- A factor in making a determination regarding the relocation of the child.
- A factor in determining whether the parenting plan or the access or Time Sharing schedule should be modified.
- A basis for ordering the temporary or permanent return of the child.
- Sufficient cause to order the parent or other person seeking to relocate the child to pay reasonable expenses and attorney’s fees incurred by the party objecting to the relocation.
- Sufficient cause for the award of reasonable attorney’s fees and costs, including interim travel expenses incident to access or Time Sharing or securing the return of the child.
FACTORS THE COURT WILL CONSIDER FOR RELOCATION
There is NO presumption as to whether the Court is in favor or disfavor with a proposed Relocation. The Court shall review the facts of each and every case individually and decide upon granted or denying the Relocation based upon the Factors listed below:
- The nature, quality, extent of involvement, and duration of the child’s relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent, other persons, sibling, half-siblings, and other significant persons in the child’s life.
- Ther age and developmental stages 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, taking into consideration any special needs of the child.
- The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and Time Sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court.
- The child’s preference, taking into consideration the age and maturity of the child.
- Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities.
- The reasons each parent or other person is seeking or opposing the Relocation.
- The current employment and economic circumstances of each parent or other person and whether the proposed Relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child.
- That the Relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations.
- The career and other opportunities available to the objecting parent or other person if the Relocation occurs.
- A history of substance abuse or domestic violence, by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
- Any other factor affecting the Best Interest of the Child.
This is an area of Family Law that must be strictly adhered to; which is why you need someone with my valuable experience to guide you through all of the intricacies. I have completed multiple trials on this specific area and have proven results. If you are thinking of Relocating for employment opportunities, personal opportunites, or a Permanent Change of Station (P.C.S.) is upcoming, please call or contact my office to schedule a consultation prior to Relocating.
With offices in Ormond Beach and Daytona Beach, the Frankel Law Firm provides clients throughout Volusia and Flagler Counties with exceptional legal services in all aspects of family law. The firm's areas of expertise include jurisdictional divorce issues; marital property characterization, valuation, and division; spousal and child support; child custody cases; paternity matters; adoptions, and prenuptial, postnuptial, and marital settlement agreements.
120 E Granada Blvd., Suite 203
Ormond Beach, FL 32176
(386) 317 4641
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