The Florida legislature passed Senate Bill 718 which aimed to drastically overhaul Florida family laws.  In summary the bill made two major changes.  First, it completely changed the alimony laws in Florida.  It eliminated what is known as “permanent periodic alimony.”  Permanent periodic alimony is rarely ordered under current law, as the Court must find that no other alimony is appropriate prior to ordering permanent periodic alimony.  In the cases where permanent periodic alimony is ordered the marriage is almost always one of “long duration,” or over seventeen years.  There must also be a need by one spouse and the ability to pay by the other spouse. The bill made other changes to alimony in cases of short and moderate duration marriages.  Primarily establishing alimony guidelines, similar to the Florida child support guidelines. This bill would have applied retroactively, meaning, final judgments and even agreements previously reached would be affected.

The other major proposed change was to child time-sharing.  The legislation would have created a presumption for equal time sharing.   Under current law most family attorneys and judges strive for an equal time-sharing plan.  However, there are certain factors the Court must consider before ordering timesharing.  The overriding concern for the family court judge in any child case is the best interest of the child.  The proposed legislation essentially mandated that equal time-sharing was in the best interest of the child absent a showing otherwise.

Below is the letter that Governor Scott wrote explaining his reasons for the veto.

If you are seeking a court order to modify time-sharing or custody determination provisions set forth in your mediated settlement agreement, you must prove to the court either that (1) there are facts concerning the welfare of the child that the court did not know at the time that it entered its original order or (2) that there has been a substantial change in circumstances. If you are relying on the second test, you must not only show that the circumstances substantially and materially changed since the original order but also that the requested change in time sharing or custody determination is in the best interests of the child. Your burden of proof is to provide competent substantial evidence in support of your position.

In a recent case decided by the Third District Court of Appeal (3rd DCA), the husband and wife had entered into a mediated agreement whereby the parties agreed to have shared parental responsibility of their minor children and the mother’s residence was designated as the primary residence for the children. About five years after the court entered its final judgment adopting the mediated agreement, the father sought to change the final judgment, particularly the provisions relating to time-sharing and primary residence of the minor children. The father’s arguments for substantial change in circumstances were “parental alienation” by the mother. The crux of the father’s argument was that the older child, as allowed by the mother, had such control over the younger siblings that it detrimentally interfered with the father’s relationship with the younger children.

Relying on the testimony of a clinical psychologist, the trial court held that the father’s allegations of “parental alienation” were “confirmed by [the psychologist].” Due to this, the trial court ordered that the younger children immediately be transferred to the father’s residence and awarded sole parental responsibility of the younger children to the father. The 3rd DCA did not find this ruling to be supported by competent substantial evidence. Upon its own review of the psychologist’s testimony, the 3rd DCA found that that although the older child made every attempt to impair the younger siblings’ relationship with their father, the mother would in fact encourage a relationship between the children and the father. Additionally, the 3rd DCA did not find that the immediate transition of the younger children’s residence from the mother to the father, as ordered by the trial court, was in the best interests of the minor children.

Therefore, it is important to keep in mind that if you are seeking a post-judgment modification of a time-sharing or custody provision in a mediated agreement, you must not only prove a substantial change in circumstances, but also that the requested relief is in the best interest of the child(ren).

For more information, see Sueiro v. Gallardo, 38 Fla. L. Weekly D63 (Fla. 3rd DCA, 2012).

Liridona Sinani is an Attorney with Martin Law Firm, P.L., whose practice focuses primarily in Family Law. She is admitted to practice law in the State of Florida. She primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

What is formerly known as “custody” is currently referred to as “time sharing” in Florida Statutes. When parties in a dissolution of marriage case have a minor child in common, there is a need to establish parental responsibility for the minor child. The parties will strive to agree on a parenting plan, including a a time-sharing schedule, which governs each parent’s relationship with his or her minor child.

For purposes of establishing parental responsibility and creating, developing, or approving a parenting plan, the court must decide all such matters in accordance with the best interests of the child. However, it is important to note that any modification to a determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances in addition to a determination that the modification is in the best interests of the child.

What may seem as an emergency to you that warrants a modification of an existing time-sharing schedule may not persuade the judge if he or she does not consider it a substantial change in circumstances. For example, in a recent opinion by the First District Court of Appeals, the former husband and wife had time-sharing of their minor child, when the former husband sought to modify it on an emergency basis because his cancer was no longer in remission and his health was deteriorating. The trial court granted the former husband’s motion and modified, on a temporary basis, the final order establishing time-sharing, notwithstanding the fact that the basis supporting the modification was not unanticipated and the court had taken into consideration the former husband’s health when it first issued the final order.

The 1^st DCA overruled the trial court’s decision on this point, holding:

“in order to obtain a temporary modification of custody, the moving party must establish (1) that there has been a substantial change in the condition of one or both parties, and (2) that the change in custody serves the best interests of the child … Furthermore, the substantial change must be one that was not reasonably contemplated at the time of the original judgment.”

Here, because the trial court acknowledged that it had taken the former husband’s health into consideration when it issued the final order, it was without power to grant a modification of such order.

Dissolution of marriage can be an emotional process, especially when children are involved. You want to ensure that you secure the best possible outcome for you and your children. That is why it is important to seek the advice of counsel from the inception of your dissolution of marriage case. If you currently have time-sharing of your minor child or children and are experiencing a change in circumstances that you feel warrants a modification of your existing order, make sure you speak to an attorney so that you are adequately prepared to meet your burden of proof to get a modification granted.

See Langdon v. Langdon, 37 Fla. L. Weekly D2061 (Fla. 1^st DCA 2012).

Liridona Sinani is an Attorney with Martin Law Firm, P.L., whose practice focuses primarily in Family Law.  She is admitted to practice law in the State of Florida. She primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

After Ms. McCready’s hearing in Arkansas this week, WINK News Now returned to Martin Law Firm to further explain the legal implications involved with this case.  Attorney Steven Martin explained that Florida, which is the “home state,” would likely ultimately determine this matter.  However, the Arkansas Judge might delay the return of the child to Florida to investigate, if for example, there were allegations of abuse.

Ultimately this entire ordeal will likely be considered in determining the final custody arrangement within the entire scheme of the best interests of the child.  Attorney Martin speculates that while Ms. McCready may have won a small battle but that ultimately her tactics will not sway the case in her favor.

To see the WINK News story follow the following link where you will be connected directly to WINK News Now’s website: http://www.winknews.com/Local-Florida/2011-12-07/Experts-say-Mindy-McCready-will-have-trouble-getting-custody

Steven E. Martin’s practice focuses on family law, civil litigation, business planning, estate planning and real property law. Mr. Martin is a Past President of the Cape Coral Bar Association and is an active member of the Lee County Bar Association. Mr. Martin is a member of the Florida Bar’s Judicial Administration and Evaluation Committee, and the Calusa Chapter of the American Inns of Court. Mr. Martin is admitted to practice in the state of Florida and in the Federal Court for the Middle District of Florida. Mr. Martin practices in Lee County Florida in Cape Coral and Fort Myers, Florida and in Collier County Florida in Naples.

WINK News Now asked Martin Law Firm attorney Dustin Butler to explain issues regarding child custody matters to local viewers.  Specifically, Mr. Butler explained what a “pick-up” order means.  “A pick-up order is essentially the court ordering law enforcement to bring a child back to this jurisdiction.  To issue a pick-up order the court needed to have already made a time-sharing or custody determination.”

Mr. Butler went on to explain that the overriding priority for Florida courts is the “best interests” of the child.  The court will consider what is in the best interests of the child above all other concerns.  When asked to explain how the court would view a parent who violated a court order resulting in a pickup order Mr. Butler was quoted saying “we’re dealing with parents not behaving properly and the court will consider that within the grand scheme of what is in the best interests of the child.” 

To see the WINK News story follow the following link where you will be connected directly to WINK News Now’s website:

http://www.winknews.com/Local-Florida/2011-12-02/Missing-persons-flyer-issued-for-Zander-McCready

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

The Second District Appeals Court recently heard a case wherein a mother appealed the trial court’s decision establishing paternity of the minor child, ordering shared parental responsibility, and awarding the father majority time-sharing in Pennsylvania, when the mother lived in Florida. The Appeals Court upheld the trial court’s decision, but explained that the mother’s petition for shared parental responsibility and majority time-sharing, and the court’s subsequent ruling, was not subject to the relocation factors set forth in section 61.13001(7)(a)-(k).

The trial court ruled that the statute did not apply because the statutory definition of relocation excluded the situation faced by the mother and father from the requirements of the relocation statute, since the father was not relocating, but already lived in Pennsylvania, where both parties had lived previously.

Relocation is a substantial issue in many divorce cases, especially now that communication and travel options are more readily available to families. Changes in the relocation statute in 2009 take note of this fact, and create additional factors for courts to consider when making rulings on this issue.

See A.F. v. R.P.B., 36 Fla. L. Weekly D2228.

Patricia Dills is an Attorney with Martin Law Firm, P.L., whose practice
focuses in Divorce, Child Support, Family Law, and Civil Litigation. She
primarily practices in Naples, Collier County, and Fort Myers, Lee County Florida.

Time-sharing is a very delicate subject and obviously of the utmost importance to both parents and the child.  It is very important that attorneys, judges, and the parties take this subject very seriously.  Florida law places the priority on the “best interests” of the child.  Specifically,

The best interests of the child are always the paramount concern in child custody and time-sharing matter.”

For this reason when one parent refuses to comply with time-sharing, while the aggrieved parent’s interest will absolutely be a consideration, the best interests of the child will still be the priority. Thus the Court must always make findings that their orders are in the best interest of the children.

However, there are several sanctions the Court can impose.  First the Court can always order the offending party to pay the other spouse’s attorney’s fees and costs in enforcing the time-sharing.  Second, the Court may

after calculating the amount of time-sharing improperly denied, award the parent denied time a sufficient amount of extra time-sharing to compensate for the time-sharing missed, and such time-sharing shall be ordered as expeditiously as possible in a manner consistent with the best interest of the child and schedule such tune-sharing in a manner that is convenient for the parent deprived of time-sharing.”

This remedy requires the careful balancing of awarding necessary make up time-sharing while doing so in a manner which is in the best interests of the child.  For example, it may be inappropriate for the Court to order an immediate full custody change in the middle of the school year.  However, if it is in the best interest of the child, this is a remedy which the Court may impose.

Finally the Court can find criminal contempt and impose a sanction of incarceration.  In a recent case the Court ordered five (5) days incarceration for the willful disregard for the Court’s time-sharing order.

Even in an unpleasant divorce it is crucial that both parents maintain the goal of achieving what is in the best interest of their child. 

See, Cheek v. Hesik, 36 Fla. L. Weekly D2378 (Fla. 1st DCA 2011).

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.