Flashcards in Family Law Deck (63)
The purposes of this Act are to avoid jurisdictional dispute with courts of other states in matters of child custody & visitation, to promote interstate cooperation, and to facilitate the interstate enforcement of custody and visitation orders.
Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA")
"Home State" Jurisdictional Test
The children's home state is the state in which the children lived with a parent for at least 6 consecutive months immediately before the commencement of the proceeding.
Where is a petition to modify an order regarding child support, child timesharing, and/or parental responsibility filed in FL?
Circuit courts have all original jurisdiction not possessed by county courts. An appeal of an order of the circuit court is filed in a district court of appeal.
A determination of parental responsibility, a parenting plan, or a timesharing schedule may not be modified without a showing of:
Substantial, material, and unanticipated change of circumstances and a determination that the modification is in the best interests of the child.
It is public policy of FL (with regard to timesharing and decision-making) that:
(1) Each minor child has frequent and continuing contact with both parents after the parents separate or the marriage is dissolved; and
(2) Parents are encouraged to share the rights, responsibilities, and jobs of childbearing.
In FL, the court must order shared parental responsibility unless:
It would be detrimental to the child.
Meaning that both parents retain full parental rights and responsibilities with respect to the children and must confer with each other to determine major decisions affecting the welfare of the children.
If shared parental responsibility would be detrimental to the children, however, the court may order:
Sole parental responsibility, with or without timesharing rights to the other parent.
The court may also divide the parental responsibilities between the parties based on the best interest of the children.
What is a timesharing schedule?
A timetable that specifies the time, including overnights and holidays, that a minor child will spend with each parent.
Each parent has the right to reasonable timesharing.
A parent may forfeit this timesharing right by engaging in conduct that may injuriously affect the children's welfare or morals.
The court may, on a proper showing, impose restrictions or conditions on timesharing. Absolute denial of timesharing is rare.
Determination of the best interest of the children for purposes of parental responsibility and timesharing is made by:
Evaluating all of the factors affecting the welfare and interests of the children and the circumstances of the family, including:
(1) the demonstrated capacity and disposition f each parent to encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required;
(2) the division of parental responsibilities and tasks, including the extent to which parental responsibilities are delegated to 3rd parties;
(3) the length of time the child has lived in a stable, satisfactory environment and the desirability f maintaining continuity;
(4) the geographic viability of the parenting plan, with special attention to the needs of school-age children and the amount of travel time required under the parenting plan;
(5) the moral fitness of the parents, including each parent's ability to maintain an environment free from substance abuse;
(6) the mental and physical health of the parents;
(7) the reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express preference;
(8) the demonstrated capacity of each parent to be informed of the circumstances of the minor child (e.g., friends, teachers, activities) and to provide a consistent routine for the child;
(9) evidence of domestic violence, child abuse, child abandonment, or child neglect or evidence that either parent has knowingly provided false information to the court regarding the same; and
(10) the capacity of each parent to protect the child from ongoing litigation
General rule regarding child support
Both parents equally share a duty to support their children.
Circumstances, however, may cast a greater burden on one of the parties.
The award of child support should be based on:
Monetary needs and ability to pay.
The FL statutes contain child support guidelines --> presumed to indicate the proper child support amount to be awarded by a court in a modification proceeding.
The vehicle for establishing, enforcing, and modifying interstate child support orders.
The Uniform Interstate Family Support Act ("UIFSA")
General rule regarding jurisdiction for child support
Jurisdiction is proper in the state in which the first action for support under UIFSA is filed.
If an obligee has obtained a support order from a foreign jurisdiction, the obligee may have the support order registered with the circuit court of FL, and the support order will then have the effect of, and be treated the same as, a FL court order.
UIFSA limits the ability of another court to modify the original support order.
The role of the obligor's state is only to enforce the original order, unless none of the parties still resides in the issuing state or the parties consent in a record to the noising court's assertion of jurisdiction to modify the order.
When can child support awards be modified?
By a court with jurisdiction upon showing of substantial change in circumstances or financial ability of either party.
Factors considered in connection with a claim of substantial change in circumstances include:
(1) financial ability (including merely an increase in the obligor's ability to pay) and the needs of the parties and the children;
(2) compliance with the child support guidelines (there must be at least 15% or $50 difference between the guidelines and the past award, whichever is greater); and
(3) a finding that medical insurance is reasonably available
For any proceeding in which child support is to be stablished or modified, each parent must file:
An affidavit showing her net income.
Using the total of these net incomes, the court finds the corresponding support amount from the statutory chart. This support amount is then allocated between the parents according to their respective net incomes.
The court may impute income (in child support proceeding) to:
Voluntarily unemployed or underemployed parent, absent physical or mental incapacity or other circumstances over which the parent has no control.
Income may not be imputed at a level that a party has never earned in the past, unless recently degreed, licensed, certified, relicensed or rectified.
Income may not be imputed based on income records that are more than 5 years old at the time the hearing or trial.
Departure from the child support guidelines in an amount that aries more than 5% requires:
That the court enter written findings and jurisdiction therefore.
Factors that may cause the court to adjust the minimum award include: extraordinary medical or educational expenses; seasonal variations in income; the child's age; the particular shared parental arrangement and the total assets of the parents and the child; and the IRS dependency exception.
The juste MUST order payment of child support that varies form the guidelines amount whenever:
Any of the children are required by court order, mediation agreement, or a particular shared parental arrangement to spend a substantial amount of time (at least 20% of the overnights in the year) with the obligor parent, whether the living arrangement is temporary or permanent.
Factors the court must consider in setting the amount include: the amount of time the children will spend with each parent; the needs of the children; the direct and indirect financial expenses for each child; the comparative income of each parent; the station in life of each parent and each child; the standard of living experienced by the entire family during the marriage; and the financial status and ability of each parent.
A court competent to decide child custody matters (in FL, a circuit court) has jurisdiction to make a child custody determination, by initial or modification judgment if it is in the state that:
(1) is the child's home state, or
(2) was the child's home state within the past 6 months and the child is now absent from the state but a parent (or a person acting as a parent) continues to live in the state.
Under the UCCJEA, the court that made the initial child custody determination has exclusive, continuing jurisdiction over the matter until the court determines that:
(1) neither the child nor the child's parents (or persons acting as parents) continue to reside in in the state; or
(2) the child no longer has a significant connection with the state, and substantial evidence relating to the matter is no longer available in the state.
In deciding whether relocation should be approved, a court must consider any factor affecting the best interest of the child, including:
(1) the extend of involvement and duration of the child's relationship with each parent and other persons int he child's life, and the feasibility of preserving those relationships through substitute arrangements for access;
(2) the child's age and needs and the likely impact of the relocation on the child;
(3) the child's preference, taking age and maturity into consideration;
(4) the current employment and economic circumstances of each parent and whether relocation will enhance the parent and child's quality of life;
(5) the reasons of each person for seeking or opposing the relocation;
(6) whether the relocation is sought in good faith and the extent to which the objecting parent has complied with support obligations;
(7) the career and other opportunities available to the objecting parent if the relocation occurs; and
(8) any history of substance abuse or domestic violence
If a parent desires a change of residence that would relocate the child at least 50 miles from her current residence, the parent must either:
(1) obtain the written consent of every person entitled to time-sharing with or access to the child; or
(2) serve a petition to relocate on every person entitled to time-sharing with or access to the child.
Relocating a child without complying with these requirements subjects the parent in violation to contempt and other proceedings to compel the return of the child.
The court may take the violation of relocating a child into account in any initial or post judgment action seeking a determination or modification of the access or time-sharing schedule as:
(1) a factor in making a determination regarding the relocation of a child;
(2) a factor in determining whether the access or time-sharing schedule should be modified;
(3) a basis for ordering the temporary or permanent return of the child;
(4) sufficient cause to order the parent in violation to pay reasonable expenses and attorney's fees incurred by the party objecting to the relocation; and
(5) 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 child's return
Upon dissolution of marriage, the court effectuates:
An equitable distribution of all marital property
Marital assets include:
(1) those acquired by either or both spouses during the marriage other than assets acquired through gift, bequest, or descent;
(2) enhancement of, or appreciation in, value of nonmarital assets as a result of the efforts of either spouse during marriage or from the contribution to or expenditure of marital funds;
(3) intefspousal gifts during the marriage; and
(4) all benefits accrued during the marriage in retirement plans, pension plans, profit-sharing plans, and the like.
Nonmarital assets include:
assets acquired by either spouse by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets.
FL courts have the discretion to consider any and all factors necessary to do equity and justice to the parties regarding the equitable distribution of marital assets and liabilities. Some of the factors the court considers are:
(1) each spouse's contribution to the marriage;
(2) each spouse's contribution to the care and education of the children;
(3) services of the homemaker;
(4) economic circumstances;
(5) the duration of the marriage;
(6) each spouse's career and education sacrifices; and
(7) the desirability of retaining any asset free from claim and hostile interference by the other spouse
If marital funds are commingled in an account with nonmarital funds, the account becomes:
A marital asset for distribution upon dissolution of the marriage.