FL Family Law Flashcards

Question

What are some grounds for a Voidable Marriage? | FADIII

Answer 1

FADIII ``` F- FRAUD A - AGE D - DURESS I- INCEST I - IMPOTENCE I - INTOXICATION ```

Answer 2

Marriage/Sexual Relations between people related within the prohibited degree of kinship. ***All states, including Florida, restrict marriages by consanguinity (blood relationships)*** **Florida also prohibits marriages between relatives of half-blood** While most jurisdictions hold marriages between persons too closely related to be void, --> Florida treats them as VOIDABLE (can be ratified - and then valid)

Answer 3

**ADOPTIVE = A OK** **Marriage between Parents/Children/Siblings/ Aunts/Uncles/Nieces/Nephews = NO WAY JOSE**

Answer 4

A party who is: 1. UNDER the age of consent to marry and 2. Didn't get PARENTAL CONSENT/COURT --> may apply to have the marriage annulled.

Answer 5

NO --> Florida will prohibit the filing of an annulment based on age once the party who was not of legal age has -- ATTAINED AGE OF MATURITY and --Continued to freely COHABIT with the other party as a MARRIED COUPLE.

Answer 6

A marriage is voidable if one party is ``` “NATURALLY and INCURABLY” impotent, UNLESS --> the other party KNEW OF impotence: - BEFORE MARRIAGE or -RATIFIED by CONSUMMATING, after finding out ```

Answer 7

If EITHER party was under the influence of drugs or alcohol 1. At the Time of Marriage 2. Making them Incapable of 3. Contracting into Marriage --> then that marriage may be ANNULLED. Parties need to show they didn't RATIFY the Marriage by continuing to Voluntarily Live with each other AFTER the ceremony.

Answer 8

Most states permit an annulment when the marriage was the result of a 1. FRAUD TO THE ESSENTIALS OF MARRIAGE Annul Due to Fraud --> the ANNULMENT REQUEST must be based on: —PRESENT FACTS( not future. In Florida, once the fraud is discovered, the marriage may be ratified by continuing the relationship after the fraud is discovered.

Answer 9

``` Concealment of defects of: —Morals, —Character, —Habits, —Fortune, and —Temper typically are INSUFFICIENT GROUNDS for an annulment ```

Answer 10

Most jurisdictions, including Florida, permit annulment when the parties participated in the marriage ceremony as: —IN JEST —HILARITY and do not have the requisite intention to be bound by the act. **This type of marriage is commonly referred to as a “limited purpose” marriage** **Must not INTEND to consummate** (ex. Immigration) ****CONSUMMATION = NO ANNULMENT****

Answer 11

NO --> While consummation of the marriage is NOT A PREREQUISITE to find the marriage valid, —FAILURE to consummate a marriage MAY BE GROUNDS FOR ANNULMENT

Answer 12

**Florida case law is unclear on the distribution of property after an annulment** Most Cases —Courts have tried to place the parties in the SAME POSITION THEY WERE IN PRIOR to the marriage. Generally... —ALIMONY is UNAVAILABLE after an annulment, but —it may be granted PENDENT ELITE

Answer 13

PENDENT ELITE is alimony that is granted DURING the PENDENCY of the annulment action

Answer 14

DAMAGES for the innocent party may be awarded in limited cases

Answer 15

1. LACHES 2. RATIFICATION **Additionally, either party can raise the defense that the ALLEGED IMPEDIMENT to the marriage is NONEXISTENT**

Answer 16

Laches -- an equitable defense, and occurs when a person has delayed in asserting her rights and, as a result, is no longer entitled to the original claim. **Basically - the failure to assert one’s rights in a TIMELY fashion will BAR one from the requested relief.

Answer 17

NO -- There is no statute of limitations on the ability to bring an annulment action, BUT... --> The Court will consider the length of the marriage/conduct of the parties

Answer 18

A party may ratify a marriage through conduct that occurs after the defect to the marriage is discovered. The necessary conduct to constitute ratification is dependent on the nature of the defect. When the defect is nonage, the mere continuation of the marital relationship after reaching the age of majority will likely be sufficient conduct to ratify the marriage.

Answer 19

Condonation, or forgiveness of a spouse, is a defense to an annulment. There must be knowledge of the misconduct or defect to the marriage and forgiveness of the misconduct or defect, and the party must resume marital relations with the guilty party. In an annulment action, the continued cohabitation with the other party after the discovery of the defect will constitute condonation.

Answer 20

Recrimination, which is akin to the unclean-hands doctrine, occurs when both spouses have committed a wrongdoing of like conduct or have grounds for annulment. In other words, because both parties were guilty of the same or similar offense that would justify an annulment, a court could not grant the request. While still a viable defense, it is rarely used.

Answer 21

Divorce is a legal dissolution of a marriage. Florida recognizes only a complete divorce; there is no remedy of judicial separation.

Answer 22

Florida is considered a “no-fault” divorce state, and it recognizes two grounds for divorce. The ground that the marriage is “irretrievably broken” is most commonly used. It is important to note that Florida has a legislative policy of granting divorces to terminate “dead” relationships. The no-fault grounds eliminate fault and wrong as a ground for dissolution.

Answer 23

Under Florida law, a marriage may be dissolved when the court finds that the marriage is irretrievably broken. For the court to grant a divorce, there must be testimony of at least one spouse with regard to the status of the marriage. The testimony of either spouse is sufficient proof to establish the requisite grounds. Despite the terminology, the fact that the discord stems from a curable condition will not prevent divorce on a no-fault ground. Fla. Stat. §61.052(1)(a).

Answer 24

If the parties do not have minor children of the marriage, the parties both agree that the marriage is irretrievably broken, or the responding party does not deny that the marriage is irretrievably broken in the answer to the pleadings, and the court finds sufficient evidence that the marriage is indeed irretrievably broken, a judgment of dissolution will be entered by the court. Fla. Stat. § 61.052(2)(a).

Answer 25

If the parties have minor children of the marriage or the responding party denies that the marriage is irretrievably broken in his responsive pleading, then the court may: i) Continue the proceedings for a period not to exceed three months for the parties to attempt reconciliation; ii) Order the parties to undergo counseling; or iii) Order the parties to take any actions that the court feels may be in the best interests of the parties and the minor children. If the court determines that the marriage is indeed irretrievably broken, it will enter the judgment of dissolution of the marriage. There is no timeframe according to which the court must wait prior to making this determination. If the court determines that the marriage is not irretrievably broken, then the petition shall be denied. Fla. Stat. § 61.052(2)(b).

Answer 26

A marriage may be dissolved upon the finding that one of the parties has been adjudged mentally incompetent for a period of at least three years preceding the filing of the complaint. It is important to note that, in any case, when the marriage is dissolved on the basis of incapacity, the court may require the petitioner to pay alimony. Fla. Stat. § 61.052(1)(b). With the court’s permission, a spouse may be deemed incapacitated, and, through his guardian, initiate a petition for dissolution of marriage. Fla. Stat. §744.3215(4)(c). To dissolve the marriage, the court must first find that the incompetent individual’s spouse has consented to the dissolution. Fla. Stat. §744.3725(6).

Answer 27

Florida has abolished the defenses of condonation, collusion, recrimination, and laches for divorce actions. The only defense available to the parties is a denial of the grounds. Fla. Stat. §§ 61.044, 61.052.

Answer 28

To hear a family-related dispute, the court must have subject-matter jurisdiction and personal jurisdiction over the parties.

Answer 29

Florida law requires at least one spouse to be a resident of the state for six months before commencing a matrimonial action. Fla. Stat. §61.021. The divorce action may be entertained even when the parties lived in another state and the grounds occurred at that location, provided the six-month residency requirement has been met prior to the filing of the complaint. In determining residency, the parties need not be physically located within the state for the entire six-month period. If the parties did not reside within Florida for the entire six-month period, the court will consider a party’s intent to make Florida her principal residence and will consider the reasons for the absence. See Ogden v. Ogden, 33 So. 2d 870 (Fla. 1947). The parties must provide proof of their residency by way of a valid driver’s license, identification card, voter’s registration card, or the testimony of a third party.

Answer 30

Proceedings may be brought against an out-of-state resident. Personal jurisdiction against that person may be obtained based on the person’s physical presence in the state, property located in the state, or minimum contacts. Fla. Stat. § 61.061. Additionally, actual or constructive notice of the complaint is required for the court to establish personal jurisdiction.

Answer 31

Under the doctrine of divisible divorce, also known as “ex parte divorce,” a court may have sufficient jurisdiction to grant a divorce but lack jurisdiction with respect to other divorce-related matters, such as property division, alimony, and child support. A court with subject-matter jurisdiction over the divorce action as well as personal jurisdiction over one spouse can grant a divorce, but it cannot determine property division, alimony, or child-support issues without personal jurisdiction over the other spouse. When a court makes such a determination, the defendant can challenge the court’s orders because of the court’s lack of in personam jurisdiction over the defendant. Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957); Estin v. Estin, 334 U.S. 541 (1948).

Answer 32

The only way for the nonresident defendant to attack the issuance of an ex parte divorce is to demonstrate that the plaintiff was not domiciled in the divorcing state at the time the judgment was granted or that he left the state’s domicile immediately after the entry of the divorce. If the court had both personal and subject matter jurisdiction over the parties, and the party litigated or had the opportunity to litigate, then the person will be precluded from collaterally attacking the judgment in any jurisdiction. Sherrer v. Sherrer, 334 U.S. 343 (1948). This situation is often seen in cases in which the parties colluded to obtain an out-of-state divorce. Although a third person may collaterally attack a divorce if standing exists, the third person will be precluded from attacking it if he is in privity with any party who would be estopped from attacking the judgment herself.

Answer 33

Generally, a dissolution of marriage action is brought in circuit court, as the Florida trial court with jurisdiction over most equitable cases. Fla. Stat. § 26.012.

Answer 34

Florida does provide a simplified procedure to dissolve a marriage when (i) the parties agree that the marriage is irretrievably broken, (ii) there are no minor or dependent children of the marriage, (iii) the wife is not currently pregnant, and (iv) the parties have amicably divided all of their property, assets, and debts. The county court has jurisdiction over the simplified dissolution procedures. The purpose for the simplified procedure is to permit the parties to obtain a dissolution of the marriage without legal assistance. In addition to the above factors, which must be included in each party’s sworn affidavit, the parties must complete a financial affidavit, a marital settlement agreement, and financial disclosures, unless the parties agree otherwise in their settlement agreement. Fla. Stat. § 34.01(2); Fla. Fam. L. R. P. 12.105.

Answer 35

In an action to dissolve a marriage, venue is generally proper in the county in which they last lived together as a married couple or in the county where the defendant resides. Carroll v. Carroll, 341 So. 2d 771 (Fla. 1977). If the defendant is not a resident of Florida, there is no venue restriction on the county in which an action may be maintained. Fla. Stat. § 47.011; Kopecky v. Kopecka, 967 So. 2d 1109 (Fla. Dist. Ct. App. 4th Dist. 2007).

Answer 36

Courts cannot require that an indigent party pay costs and fees in order to access the court system. Such requirements are unconstitutional. Boddie v. Connecticut, 401 U.S. 371 (1971). Although there is no legal right to counsel for indigent parties in divorce proceedings, the court has the discretion to award attorney’s fees and costs if the party is unable to afford the services of legal counsel.

Answer 37

Florida will give full faith and credit to a valid divorce from another state that has an effect on property located within Florida as long as it is an action that Florida recognizes. For example, Florida does not recognize judicial separation or a divorce from bed and board; as a result, the judgment will not be binding on the spouse residing in Florida. Example: Husband obtains a divorce in State C based on Wife’s abandonment. Wife is a Florida domiciliary. As a part of the judgment of dissolution, Husband may remarry, but Wife must seek the permission of the court to remarry in light of her abandonment of Husband. The out-of-state judgment will not be binding on Wife because Florida will not recognize a degree that limits a party’s right to remarry. Wife would have to seek, and would be granted, a dissolution in Florida. Fla. Stat. §61.031.

Answer 38

The constitutional requirement of full faith and credit does not apply to divorces rendered in countries outside the United States. The decrees or judgments, however, may be honored under comity and reciprocity. Florida, generally, will honor a foreign divorce when (i) there is reciprocity, (ii) one of the spouses is domiciled in the country rendering the judgment, and (iii) the other party has received notice of the action and the right to a fair trial.

Answer 39

(3 PPP'S) 1. Premarital Agreement 2. Postnuptial Agreement 3. Separation Agreement 4. Property Settlement Agreement

Answer 40

A premarital (or “prenuptial” or “antenuptial”) agreement is a contract made before the marriage, typically containing terms that relate to division of property or spousal support in the case of a divorce and at death. As with any contract, consideration is required. A valid marriage is sufficient consideration for a premarital agreement. Accordingly, the premarital agreement becomes effective upon the date of the marriage. Fla. Stat. § 61.079. Florida, along with approximately 26 other states, has adopted the Uniform Premarital Agreement Act (“UPAA”). The UPAA is a uniform law relating specifically to these types of contracts and imposing the same standards that are discussed below at § II.C.2, Validity of Marital Agreements. Fla. Stat. § 61.079. Importantly, premarital contracts may not adversely affect a child’s right to support or determine parental responsibility. Any terms authoritatively addressing either child support or parental responsibility will typically be deemed unenforceable.

Answer 41

Postnuptial agreements are made between a married couple during the marriage, entered into in contemplation of an ongoing, viable marriage. While consideration is required, the mutual exchange of promises will suffice. These agreements can define property division and spousal support. While a postnuptial agreement can address child support or parental responsibility, it may not adversely affect a child’s right to support or firmly determine responsibility; any provisions that do so will be unenforceable. Unlike prenuptial agreements, postnuptial agreements are not subject to the Statute of Frauds and, therefore, need only be in writing if the subject matter falls within the Statute of Frauds, such as with a transfer of land.

Answer 42

Separation agreements are made between a married couple who are planning for divorce. These agreements can define property division, spousal support, child support, parental responsibility, and time-sharing. These agreements are generally merged into the final judgment for divorce, as long as they are based on full and fair disclosure.

Answer 43

The purpose of a property settlement agreement is to settle the economic issues of the marital estate. It is entered into by the parties before a divorce decree is issued. A property settlement agreement must intend to be the final settlement of obligations concerning the property, both real and personal, of the parties. Once executed, a property settlement agreement is specifically enforceable and may not be modified by the court. The reconciliation or remarriage of the same parties will abrogate the unexecuted portions of the prior marital settlement agreement with that spouse absent an explicit statement in the agreement to the contrary. Execution provisions are unaffected by the remarriage or reconciliation.

Answer 44

A premarital agreement is enforceable if there has been full disclosure, it is fair and reasonable, and it is voluntary. The agreement must be in writing and signed by the party to be charged. Proof of the invalidity of such an agreement is by clear and convincing evidence. In Florida, a provision in a premarital agreement awarding attorney’s fees to the prevailing party in an action regarding the validity of the agreement is enforceable. If the marriage is voided, a premarital contract is enforceable only if it will avoid an inequitable result. Fla. Stat. § 61.079(8).

Answer 45

Premarital agreements must provide full disclosure of financial status, including income, assets, and liabilities of all parties. Disclosure is an important consideration to the court, as it demonstrates that the parties exercised a meaningful choice when they agreed to the terms of the contract. Absent full disclosure, a court generally will refuse to enforce the agreement. In Florida, a marital contract will not be enforceable when it is unconscionable at the time of execution or when, prior to execution, the party contesting the agreement (i)was not given a fair or reasonable disclosure of the other party’s financial status, (ii) did not expressly waive any rights to disclosure, and (iii) did not have, or could not obtain in a reasonable fashion, an adequate knowledge of the property or financial obligations of the other party. Fla. Stat. § 61.079(7). A party will be prevented from challenging the adequacy of the financial disclosure of a property settlement agreement executed after the initiation of the dissolution action and completion of discovery, as all of the relevant and necessary information could have been obtained through the appropriate discovery mechanisms. Macar v. Macar, 803 So. 2d 707 (Fla. 2001).

Answer 46

The current trend is for courts to enforce contractual agreements that may not be fair as long as there has been fair disclosure. To determine if a premarital contract’s terms are reasonable, the courts consider the parties’ wealth, age, and health. An agreement obtained by fraud, duress, or undue influence may be set aside as unfair. When a mediator participates in the creation of a settlement agreement, misconduct by the mediator (e.g., bias toward one spouse) can give rise to grounds for setting aside the agreement. If a confidential relationship between the spouses exists, the burden of proving the fairness of the agreement or the absence of undue influence may be placed on the dominant spouse. Florida evaluates the fairness of the agreement at the time of execution of the contract.

Answer 47

The parties must enter into the contract voluntarily (i.e., free of fraud, duress, or misrepresentation). Courts consider factors such as time pressure, the parties’ previous business experience, the opportunity to be represented by independent counsel, and statements made between the parties at the time that the agreement was presented. A party’s insistence on the agreement as a condition to marriage is not considered duress.

Answer 48

Even if a valid agreement has been voluntarily executed and meets the test for reasonableness, fairness, and full disclosure, the agreement may be set aside if its result winds up leaving one spouse woefully impoverished to the extent that he becomes dependent on the state (i.e., welfare). It is irrelevant if abrogation of the exact terms of the agreement results.

Answer 49

While a court may uphold a provision in a marital agreement that prevents modification of property rights, including spousal support, a court may always modify child-support provisions in a marital agreement even if the agreement states that no modifications may be made. A premarital agreement may be amended, revoked, or terminated by written agreement of the parties. No consideration is required.

Answer 50

In addition to a party’s rights to determine the division of property in the event of divorce, parties may include provisions regarding probate rights in a premarital or postnuptial agreement, including the waiver or modification of intestacy benefits or rights previously conferred under an earlier will. Fla. Stat. § 732.702.

Answer 51

There is no additional consideration required, other than the execution of the agreement, to waive a party’s probate rights. Unlike with property division in the event of divorce, no disclosure is required to effectuate a valid agreement concerning probate rights. While fraud in the inducement will not invalidate a premarital probate agreement, fraud in the execution may constitute sufficient grounds to void the agreement. As to a premarital probate agreement, misleading a spouse as to one party’s net worth (fraud in the inducement) will not invalidate the agreement, but fraudulently obtaining a spouse’s signature on the agreement may constitute sufficient grounds to invalidate the agreement (fraud in the execution). See Stregack v. Moldofsky, 474 So. 2d 206 (Fla. 1985) (fraud in the inducement was found insufficient grounds).

Answer 52

Every jurisdiction, including Florida, has enacted a statute granting civil relief to victims of domestic violence.

Answer 53

The purpose of the domestic violence law is to prevent future abuse of family or household members based on the defendant’s current or past abusive actions toward the plaintiff. In Florida, domestic violence is defined as assault, sexual battery, battery, kidnapping, stalking, false imprisonment, or other criminal offense by a family or household member against another family or household member that results in physical injury or death. Fla. Stat. § 741.28(2).

Answer 54

Only certain persons may receive protection under the domestic violence laws. Florida’s statute limits protection to those persons who have one of the following relationships: i) Spouses, current or former; ii) People who live as if they were spouses but who are not legally married; iii) Parents and children; iv) People related by blood or marriage; v) People residing together, either currently or formerly, as if they were family; and vi) People who have a child in common. Fla. Stat. § 741.28(3). There are no minimum residency requirements. All of the people seeking relief, with the exception of those people who have a child in common, must live together, either currently or in the past.

Answer 55

The primary form of relief is an injunction, although there are several forms that may be granted. To receive an injunction, the petitioner must certify under oath that the respondent has committed one of the enumerated acts discussed in §II.D.1.a., Abuse, supra, or that there exists a reasonable belief that the respondent will commit one of those acts. The respondent must be personally served with the petition for protection by a member of law enforcement. With the exception of an ex parte injunction, there must be a hearing established by the court at the earliest possible time. The injunction may not be amended by either party without a court order. Fla. Stat. §741.2902.

Answer 56

After the filing of a petition, the court will determine whether an ex parte injunction should be entered. The temporary injunction will provide immediate relief for the petitioner and may include protection for her family or other household members. Notice should be provided to the adverse party, except when there is an immediate and serious threat of harm to the petitioner. The court can only consider the verified pleadings or affidavits unless the respondent appears at the hearing or has received reasonable notice. Fla. Stat. § 741.30(5)(b). For the injunction to be issued, the court must determine that the petitioner has a reasonable cause to believe that there is an immediate danger of domestic violence. Fla. Stat. § 741.30(5)(a). If the petitioner does not meet the standard, the court must deny the injunction and issue a written statement of the grounds for denial. Fla. Stat. § 741.30(5)(b). If the only reason that the injunction is not issued is that the court does not find a reasonable cause to believe that there is immediate and present danger to the petitioner, then the court must set a full hearing on the petition for injunction at the earliest possible date, with notice to the respondent. Fla. Stat. §741.30(5)(b). If issued, the ex parte injunction will be effective only for a period not to exceed 15 days, absent a finding of good cause to issue a continuance that can include an extension to obtain service of process. The general injunction hearing must be held within those 15 days unless a continuance has been granted.

Answer 57

In determining whether the petitioner has a “reasonable cause to believe” that she is in imminent danger of becoming a domestic violence victim, the court must consider all relevant factors alleged in the petition for injunction, including, but not limited to: i) History between the parties, including threats, harassment, stalking, and physical abuse; ii) Attempted harm to the petitioner, her family members, or her household members; iii) Threatened harm, kidnapping, or concealment of the petitioner’s children by the respondent; iv) The respondent’s criminal history of violence or threats of violence; v) Use or threatened use of weapons by the respondent against the petitioner; vi) Intentional injury or death of a family pet by the respondent; vii) The existence of a verifiable order of protection previously issued in any jurisdiction; or viii) Destruction of the petitioner’s personal property by the respondent. Fla. Stat. § 741.30(6)(b).

Answer 58

The court can grant multiple forms of relief when issuing an ex parte injunction, depending on the individual circumstances of each case. Such forms of relief include the following: i) Restrain the respondent from committing any acts of domestic violence against the petitioner, any family member of the petitioner, or any household members of the petitioner; ii) Restrain the respondent from communication or contact with the petitioner, any family members, or any household member; iii) Award the petitioner temporary possession and use of a shared residence with the respondent, or restrain the respondent from the petitioner’s residence; iv) Exclude the respondent from the petitioner’s place of employment, school, or specific locations frequented; v) Award temporary custody of any children in common to the petitioner; vi) Order the surrender of the respondent’s firearms and/or ammunition; or vii) Order any protection necessary for the safety of the petitioner.

Answer 59

After the issuance of an ex parte temporary injunction or order denying the injunction but setting a hearing date due to a lack of imminent harm, the court will hold a hearing for a general injunction for protection. Unlike with the ex parte injunction process, notice to the respondent and a hearing is required before a general injunction can issue. Any relief granted can be for a fixed duration or until further order by the court. The petitioner has the right to request that the relief be extended. Fla. Stat. § 741.30(5)(c). Permanent injunctions are available when necessary to protect the petitioner.

Answer 60

In addition to the relief available at an ex parte injunction hearing, the following forms of relief are available at the time a general injunction for protection is granted: i) Establish temporary support, custody, and visitation for minor children in common or alimony for the petitioner; ii) Refer the petitioner to a domestic-violence center; iii) Order counseling or any other necessities for the minor children; iv) Order the respondent to undergo a substance-abuse or mental-health evaluation and complete any recommended treatment; or v) Order the respondent to attend and complete a batterers’ intervention program, which is mandatory for any respondent who has violated an ex parte injunction, who has previously been convicted or adjudicated of a crime of violence, or who previously had an injunction entered against him in any jurisdiction after a hearing with notice, except when the court determines that the person does not qualify. (A batterers’ intervention program is also required as a condition of probation or other community supervision when the person is convicted of a domestic-violence offense.) Mutual injunctions are prohibited by statute.

Answer 61

In addition to the ex parte injunction and general injunction, there are injunctions that may be issued in cases of repeat violence, dating violence, and sexual violence. Unlike the domestic-violence injunctions listed above, there is no requirement that the parties be family or household members.

Answer 62

A petitioner seeking an injunction based on sexual violence must acknowledge or certify that there was a single incidence of (i) sexual performance by a child, (ii)sexual battery, (iii) any forcible felony when a sexual act was attempted or committed regardless of the filing of criminal charges, (iv) luring or enticing a child, or (v) a lewd or lascivious act committed against or in the presence of a person under the age of 16 years.

Answer 63

A petitioner seeking an injunction based on dating violence must first establish that she and the respondent have or had a dating relationship of a continuing or significant nature that is romantic or intimate. In determining whether the requisite relationship exists, the court will consider whether the relationship: i) Was in existence within the past six months; ii) Included the expectation of mutual affection or sexual intimacy between the parties; and iii) Was over a period of time and during a continuous basis during that interim.

Answer 64

To obtain an injunction based on dating violence, the petitioner must establish that she is: i) A victim of past dating violence who has a reasonable belief or cause to believe that she is in imminent danger of an additional act of dating violence; ii) A person who has a reasonable belief or cause to believe that she is in imminent danger of becoming the victim of an act of dating violence; or iii) A parent or guardian seeking an injunction on behalf of a minor child residing with her and that she personally has observed, has direct evidence of, or has affidavits from eyewitnesses regarding the alleged act of dating violence.

Answer 65

A petitioner seeking an injunction based on repeat violence must attest or certify under oath that the respondent has committed at least two acts of assault, battery, sexual battery, or stalking against her or against an immediate member of her family, and one of the acts must have occurred within the past six months.

Answer 66

There are several remedies available when a respondent violates a provision of the injunction. These remedies include civil contempt and criminal contempt, and such violations may rise to the level of a crime if certain statutory criteria can be established. When available, criminal prosecution of the violation is preferred. Fla. Stat. §741.31. The injured party may recover damages, including attorney’s fees and costs.

Answer 67

Any law-enforcement officer investigating a domestic-violence matter must advise the victim of the types of services that are available, and such advice must include the legal rights and remedies available. Additionally, law-enforcement officers are immune from civil actions filed against them if an arrest is made in good faith and supported by probable cause while enforcing a court order or service of process in a domestic-violence matter.

Answer 68

Any victim of domestic violence who has suffered physical or psychological injuries over an extended period of time as a result of continuing domestic violence has a cause of action against the perpetrator of the violence. The action may be brought for compensatory and punitive damages, but no plaintiff may recover twice for the same incident giving rise to the cause of action. No portion of the punitive damages received may be allotted to the state. Fla. Stat. § 768.35.

Answer 69

The new address of any victim of domestic violence, including her residence, her place of employment, or her school, may be kept confidential if the victim fears for her safety. The confidentiality is to prevent the perpetrator from discerning the location of the victim. Fla. Stat. § 741.403. Any victim desiring to participate in the program must forward a sworn statement to the office of the attorney general, who shall designate an address for use by all governmental agencies. The confidential address is not subject to the open public records law, and it may be released by court order only if the victim no longer desires to participate in the program or to execute an arrest warrant.

Answer 70

Any respondent who has had a final injunction entered against her enjoining her from engaging in acts of domestic violence may not possess, control, or have custody or care of a firearm. A violation of this provision is a first-degree misdemeanor. Additionally, no dealer of firearms may sell a firearm to anyone convicted of a misdemeanor crime of domestic violence at any point or to anyone who has been adjudicated of guilt withheld or a sentence suspended within the last three years on any misdemeanor or felony crime of domestic violence. Fla. Stat. § 790.065(2)(a). Moreover, a concealed-weapons permit may not be obtained by any person (i)subject to a domestic-violence injunction or (ii) found guilty of or who has had a suspended adjudication or sentence on a misdemeanor crime of domestic violence within the past three years. None of the above restrictions applies to officers who possess firearms because of their official duties. Fla. Stat. §741.31(4)(b).

Answer 71

Florida has enacted legislation known as the Adult Protective Services Act to protect the elderly or the disabled from abuse and neglect. Fla. Stat. §§ 415.101–415.113. The Act protects persons aged 60 or older who have an impaired ability to protect themselves because of neglect or infirmities associated with aging or persons over the age of 18 who suffer a form of mental or physical disability that restricts their ability to live a normal life. As with child abuse, there is a mandatory reporting procedure for known or suspected abuse. Once a report has been received, the Department of Children and Families (“DCF”) will investigate the allegation, and if abuse, exploitation, or neglect is founded or substantiated, the state’s attorney will prosecute. Protective services may be provided, as needed, to those individuals who are determined to be abused, neglected, or exploited. The services may include medical services or legal services, including placement outside of the home on either an emergent or a permanent basis. The consent of the individual is typically required, except when (i) the services are on an emergent basis due to a substantial risk of death or immediate and serious physical harm and the person is incapable of consent due to lack of capacity or (ii) the person lacks the capacity to consent. If the neglect is caused by life circumstances as opposed to by another party, a referral to community-based care is appropriate. A periodic review of the need for services must be performed.

Answer 72

Florida is an equitable distribution state. Upon dissolution of a marriage, marital property is divided in a fair and equitable manner. Each party does not necessarily get 50% of the marital property. While Florida law commences with the premise that the parties will receive an equal distribution of all marital property, if the court is presented with justification for unequal distribution, the court, which has broad discretion in fashioning an equitable distribution award, may do so. Fla. Stat. § 61.075(1).

Answer 73

The court may equitably divide the property of the parties without consideration of whether alimony will be awarded. After a determination of an equitable distribution of marital property, the court should consider whether to make an alimony award. Fla. Stat. § 61.075(9)

Answer 74

The court may award a cash payment, in either a lump sum or installments, as a part of the equitable distribution award. If awarded, an equitable distribution award, unlike permanent alimony, will survive death or remarriage of either party. Fla. Stat. § 61.075(2),(10). The court generally cannot order a party to maintain an ex-spouse as beneficiary of a life insurance policy, but the parties themselves may enter into an enforceable agreement to that effect. Cantrell v. Home Life Ins. Co., 524 So. 2d 1063 (Fla. Dist. Ct. App. 5th Dist. 1988).

Answer 75

The Florida Family Law Rules require each party to file financial affidavits, including three years of tax returns, evidence of three months of current income, loan applications, and financial statements for the past year with any request, or in opposition to a request, for financial relief, whether permanent or temporary, or in enforcement proceedings. Fla. Fam. L. R. P. 12.285,

Answer 76

When necessary to protect the parties from abuse, the court can conditionally seal the financial information or court record. There are specific timeframes required for disclosure and/or inspection and sanctions for failure to comply, including the inadmissibility of documents. Fla. Fam. L. R. P. 12.380.

Answer 77

Florida does impose an ongoing duty to amend all discovery responses, including financial disclosures, and it requires that the supplemental information be served as soon as possible, but not later than 24 hours before any applicable hearing, absent a showing of good cause.

Answer 78

The court must first determine which assets are marital and which are nonmarital. The nonmarital assets are the property of their owner.

Answer 79

Marital Property Generally, property acquired during the marriage is marital property. In addition, the increase in value of nonmarital property (“enhanced value”) during the marriage as a result of the efforts of either spouse or from the contribution of marital funds or marital assets is marital property (“active appreciation”).

Answer 80

By contrast, an increase in the value of nonmarital property due to inflation or market conditions (passive appreciation) is not marital property simply because the increase took place during the marriage. However, a further increase in the enhanced value of nonmarital property that constitutes marital property is also marital property, even though this further increase is due to inflation or market conditions.

Answer 81

The burden is on the owner of the nonmarital property to establish the extent to which an increase in the value of the property is not attributable to marital funds or labor.

Answer 82

Interspousal gifts made during the marriage and any retirement, pension, insurance, or similar benefits, whether vested or nonvested, that accrued during the marriage are also marital property.

Answer 83

Title to the property is immaterial, except that the court will presume any property, real or personal, titled as tenants by the entirety is marital property regardless of when it was acquired. It is important to note that the taking of property in the names of both spouses will presumptively create a tenancy by the entirety. Even if the property is titled as tenants by the entirety, it will not preclude a spouse from requesting an unequal distribution.

Answer 84

Florida has abolished the legal disabilities once imposed on married women and property. Under the current law, spouses own their own property, real and personal, both prior to and during the marriage. After dissolution of the marriage, the property held in a tenancy by the entirety becomes property held as a tenancy in common. Additionally, all conveyances of property made between spouses are effective to convey title.

Answer 85

The following property is not marital property: i) Property acquired before marriage or property acquired in exchange for property acquired before the marriage; ii) Property excluded by the parties’ valid agreement entered into before, during, or after the marriage; iii) Property acquired by gift (except between spouses), bequest, devise, or descent, or property acquired in exchange for such property; and iv) Property or income derived from nonmarital assets during the marriage, unless the income was used or relied on by the parties as a marital asset. In addition to dividing marital assets, the court will also equitably divide marital liabilities or debts. As with assets, all liabilities incurred by either spouse during the marriage are presumed to be marital unless that presumption is rebutted. Fla. Stat. § 61.075(8). If, however, any liability was incurred as a result of the forgery or unauthorized signature of one spouse signing the name of the other spouse, without permission, then the liability will be the nonmarital liability of the spouse who engaged in the forgery or affixed the unauthorized signature.

Answer 86

The distribution of the parties’ marital property should be equal, unless there is a justification for unequal treatment based on the following relevant factors: i) Length of the marriage; ii) Economic circumstances of each spouse; iii) Contribution of each spouse to the marriage, including homemaker services, child rearing, and education of the children; iv) Contributions of one spouse to the education or personal career of the other spouse; v) Interruptions to either spouse’s personal career or education; vi) Interest or desirability of one spouse retaining an asset free from the claim of the other spouse, such as a business or professional practice; vii) Contribution of the spouses to the improvement of, enhancement of, production of income from, or incurring liabilities against the marital or nonmarital assets of the parties; viii) Dissipation, waste, or destruction of marital assets on an intentional basis after the filing of the divorce complaint or within two years preceding the filing of the complaint; ix) Interest or desirability of one spouse retaining the marital residence for the dependent children, or other party, when financially feasible and in the best interests of the child or the other party, if the parties can financially retain the residence until the emancipation of the children or a date established by the court; and x) Any other factors that the court finds necessary and just.

Answer 87

Special equity is a vested interest acquired by a spouse because of contribution of funds, services, or property made beyond the performance of normal marital duties. Florida abolished claims of special equity by statute and instead allows only claims for unequal distribution of marital property, based on the factors listed above. Fla. Stat. § 61.075(11).

Answer 88

A court may award exclusive use of the marital residence to one party, but the court must first determine that the award of the residence is in the best interests of the dependent children to remain in the residence, or if exclusive use is requested for someone other than the minor children, the court must first determine that equities will be served by the award. An award is subject to modification at any point in which a change in circumstances is established.

Answer 89

The date for identifying whether property, assets, and liabilities are marital or nonmarital is the earliest of the following dates: (i) date of the filing of the complaint for divorce; (ii) date that a valid property settlement agreement was executed; (iii) date provided in the parties’ valid property settlement agreement; or (iv) date provided by the court that has been determined to be fair and equitable under the circumstances. Fla. Stat. § 61.075(7). The date for determining the value of the assets and liabilities is established by the court and is based on what is fair and equitable under the circumstances. Different dates may be used for different assets based on the individual circumstances.

Answer 90

Florida, which follows the majority view, does not treat a professional license or degree as a distributable property interest. Joachim v. Joachim, 942 So. 2d 3 (Fla. Dist. Ct. App. 2006). The court may, however, consider an advanced degree or license as an increased earning capacity, which may have an effect on the determination of alimony or the distribution of marital assets. The reason behind the exclusion of a professional license as a distributable property interest is its speculative nature in measuring future earning capacity.

Answer 91

Retirement or pension benefits, whether vested or nonvested, acquired during the marriage are considered marital property and subject to equitable distribution. Fla. Stat. Ann. § 61.075 (6)(a)1.d. These benefits include military pensions. Courts should use evidence of present value, not future value, in calculating equitable distribution of pension benefits. Ascherman v. Ascherman, 977 So. 2d 763 (2008).

Answer 92

In Florida, the critical element for the allocation of personal-injury or workers’ compensation awards is the nature of the award. Based on the nature, the award is allocated between marital and nonmarital property. Compensatory damages for pain, suffering, disability, and loss are considered separate to the injured spouse. Consortium losses are considered separate property of the noninjured spouse. Awards for lost wages, loss of earning capacity during the marriage, and medical expenses paid from marital assets are typically split. The court calculates the portion of the award attributable from the time of the accident until the termination of the marriage, and it treats that portion as marital property. Any part of the award attributable to loss of wages or medical expenses after the termination of the marriage is separate property. Weisfield v. Weisfield, 545 So. 2d 1341 (Fla. 1989).

Answer 93

Goodwill The reputation and clientele of a professional practice (such as that of a doctor or lawyer) is considered marital property in Florida if it was developed during the marriage. Thompson v. Thompson, 576 So. 2d 267 (Fla. 1991). Goodwill is typically defined to be property of an intangible nature, which includes the expectation of continued public patronage that exists separate and apart from the reputation of a particular individual. Therefore, in Florida, for professional goodwill to be marital property, it must be a business asset having a value independent of the continued presence or reputation of any particular individual.

Answer 94

A possible future interest in property (e.g., inheritance) is not distributable.

Answer 95

Social security benefits are not subject to equitable distribution. Flemming v. Nestor, 363 U.S. 603 (1960) (applying accrued property rights to the social security system would deprive it of the flexibility in adjustment that it demands).

Answer 96

Upon the showing of good cause, the court may enter an interim order during the pendency of the dissolution action permitting a partial distribution of assets and liabilities so long as it does not result in an inequitable result or otherwise prejudice either party as to claims for support or attorney’s fees. Any partial interim distribution shall be credited against the final allocation of equitable distribution.

Answer 97

Once the judgment of dissolution has been entered dissolving the marriage and equitably distributing all of the parties’ property, the property settlement is final and may not be modified. If it was procured as a result of fraud, it may be overturned upon the filing of a motion seeking relief within one year. If the motion seeking such relief is filed based on a fraudulent financial affidavit, then the one-year statute of limitations is inapplicable and it may be filed within a reasonable amount of time. Fla. Fam. L. R. P. 12.540(b).

Answer 98

In Florida, attorney’s fees may be awarded to either spouse in a dissolution action. Fla. Stat. § 61.16. For an award of attorney’s fees to be granted, the spouse must demonstrate a lack of funds in comparison to the other party and must demonstrate that the other spouse has the means to provide the funds. The court will also consider other factors in determining whether an award is warranted, including (i) the duration of the litigation, (ii) the history of the litigation and its scope, (iii) the course of prior or pending litigation between the parties, and (iv) whether the litigation or the position of the parties was primarily to harass the other spouse. See Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997). Attorney’s fees may also be granted to equalize the ability of each party to seek competent legal counsel or to prevent an inequitable dissipation in one spouse’s assets in comparison to the other for the payment of attorney’s fees.

Answer 99

The Florida Legislature enacted the Collaborative Law Process Act to provide a “unique nonadversarial process that preserves a working relationship between the parties and reduces the emotional and financial toll of litigation.” Fla. Stat. § 61.55. The goal of the collaborative process is to reach an agreement resolving issues of divorce, property distribution, child and spousal support, parental responsibility, paternity, and other family law matters. The collaboration is not compulsory and either party may terminate the process at any time. Unless otherwise agreed, communications made during the collaboration process are confidential and privileged. This privilege can be waived and does not apply to threats of injury, criminal activity, or claims of professional misconduct (among other limitations). Fla. Stat. §§ 61.55–61.58.

Answer 100

FINANCIAL SUPPORT OF SPOUSES Spousal Support (Alimony) Spousal support (called “alimony” in Florida) is the obligation of one party to provide the other with support in the form of income. Although typically awarded as a part of a dissolution action, it may be awarded at any time if a spouse is not fulfilling her reciprocal obligation of support. Alimony is awarded if one spouse cannot provide for her own needs with employment. Alimony, while typically paid over a period of time, may take the form of a lump-sum payment. Unlike property settlements, alimony obligations cannot be discharged in bankruptcy. The right to receive alimony, however, may be expressly waived for consideration. Fla. Stat. § 61.08.

Answer 101

In determining whether an award of alimony should be granted, the court must first make a specific factual determination as to whether either party has an actual need for alimony and whether either party has the means to pay such necessary alimony. To determine the proper alimony type and amount, the court considers all of the following economic factors, as well as any factors that promote equity and justice between the parties.

Answer 102

The court considers the financial resources of the spouse seeking support, including nonmarital assets, property to be awarded in the divorce, and any child support. It also takes each spouse’s earning potential into account, as well as the ability to pay of the spouse from whom support is sought.

Answer 103

The standard of living of the couple during the marriage is considered.

Answer 104

Courts also consider the time it will take for a spouse to find employment or to complete any education or training necessary for a job.

Answer 105

The length of the marriage is considered in determining alimony. In Florida, there is a rebuttable presumption as to the duration of a marriage for purposes of determining alimony. Marriages are divided into three durational categories, which are determined from the date of the marriage until the date of the filing of dissolution.

Answer 106

i) Short-term A short-term marriage is one lasting less than seven years.

Answer 107

ii) Moderate-term A moderate-term marriage is one that lasts more than seven years but less than 17 years.

Answer 108

iii) Long-term A long-term marriage is one that lasts 17 years or more.

Answer 109

Contributions to the marriage Contributions by one spouse to the marriage, particularly those that enhanced the earning potential of the other spouse (e.g., education, training), may be considered. Services rendered in homemaking and caring for the children are also considered.

Answer 110

The parties’ ages and health, both physical and emotional, are considered in determining support.

Answer 111

In Florida, fault or marital misconduct in the form of adultery may be taken into account when determining spousal support. Fla. Stat. § 61.08(1). While the courts are statutorily permitted to consider marital misconduct, the modern trend is to consider the marital misconduct of an adulterous party only when the adultery contributed to a dissipation of marital assets or resulted in a negative financial impact. Pardue v. Pardue, 518 So. 2d 954 (Fla. 1988); Noah v. Noah, 491 So. 2d 1124, 1127 (Fla. 1986) (adulterous conduct may be relevant if it “contributed to the depletion of the financial resources of the family”). As a result, absent a negative effect on the family’s financial resources, it is improper to consider adultery in determining alimony. Phillips v. Phillips, 504 So. 2d 412, 413 (Fla. Dist. Ct. App. 1987), review dismissed, 511 So. 2d 299 (Fla. 1987).

Answer 112

The future responsibilities that each party will have with regard to any common minor children may also be considered.

Answer 113

All of the sources of income available to each party are considered, including investments held by the parties.

Answer 114

The tax treatment and consequences to both parties if alimony is awarded, including the designation of all or a portion of the payment as nontaxable or nondeductible, also is considered as a factor.

Answer 115

The court may order the party who must pay alimony to purchase and maintain a life insurance policy or bond to the extent necessary to protect the alimony award. Fla. Stat. § 61.08(3).

Answer 116

Florida recognizes five types of post-divorce spousal support or alimony, each with its own purpose. A court may award a combination of these types of alimony if appropriate. In addition to the five types of alimony discussed below, the court may also grant exclusive possession and use of the former marital home as a form of alimony or child support.

Answer 117

Bridge-the-gap alimony is awarded to allow a party to transition from being married to being single. It is designed to help a party with legitimate, specific short-term needs. Bridge-the-gap alimony may not exceed two years in duration, and it may not be modified. Additionally, it terminates upon the death of either party or the remarriage of the party receiving alimony.

Answer 118

Rehabilitative alimony Rehabilitative alimony is for a limited period of time to assist a party in establishing self-support, such as until the spouse receives education, training, or employment. The purpose of rehabilitative alimony is to enhance and improve the earning capacity of the economically dependent spouse.

Answer 119

To award rehabilitative alimony, the court must order a specific and defined rehabilitative plan, such as a budget for education and living expenses. Rehabilitative alimony may be modified or terminated based upon a substantial change in circumstances, upon noncompliance with the plan, or upon completion of the plan. Remarriage of the recipient spouse will not necessarily terminate rehabilitative alimony, but it is one of the factors the court will consider as to whether there has been a material and substantial change in circumstances warranting termination. Vaccato v. Pustizzi, 648 So. 2d 1206 (Fla. Dist. Ct. App. 1995); Owens v. Owens, 559 So. 2d 321 (Fla. Dist. Ct. App. 1990).

Answer 120

Permanent alimony is an award for the remainder of the dependent spouse’s life, unless certain circumstances occur. Permanent alimony is awarded to provide for needs and life necessities as established during a marriage for the party who lacks the financial ability to meet such needs after dissolution. Permanent alimony will most likely be awarded after a marriage of long duration. Following a marriage of moderate duration, the court must find based on clear and convincing evidence that such an award is appropriate based upon the aforementioned list of factors to consider when awarding alimony. Permanent alimony is awarded after a short-term marriage only if exceptional circumstances exist.

Answer 121

To award permanent alimony, the court must include a finding that no other form of alimony is fair and reasonable under the parties’ circumstances. Permanent alimony terminates upon the death of either party or the remarriage of the receiving party. Permanent alimony may be modified or terminated based upon a substantial change in circumstances or upon the existence of a supportive relationship.

Answer 122

If none of the other categories is suitable, durational alimony may be awarded for a short period. Following a short-term or moderate-term marriage (or a long-term marriage without an ongoing need for permanent support), the court may order durational alimony to provide economic assistance to a party for a set period. The length of durational alimony may not be greater than the length of the marriage. Durational alimony terminates upon the death of either party or upon the remarriage of the party receiving such alimony. The amount of durational alimony may be modified based upon a substantial change in circumstances, but the length of such an award may not be modified absent exceptional circumstances.

Answer 123

Pendente lite, or temporary, alimony is available only from the time of separation until the time that the marriage of the parties is dissolved. Fla. Stat. § 61.071. The purpose of pendente lite alimony is to put the lesser-earning spouse on equal footing with the greater-earning spouse and permit the lesser-earning spouse “not to be put out of court.” The court may, upon a showing of good cause, modify, vacate, or set aside a temporary support award either before a final order is entered or at the time that the final order is entered. Retroactive modifications are permissible and may extend to the date that the temporary order was initially entered or the date that the petition for support or dissolution was filed. Fla. Stat. § 61.14(11). Unlike the right to receive alimony post-divorce, the right to receive temporary alimony cannot be contracted away. Alimony and spousal-maintenance payments are generally taxable as ordinary income to the recipient and are tax-deductible by the payor.

Answer 124

Available in only a few states, palimony is support provided by one unmarried cohabitant to another after the dissolution of their relationship. First recognized in 1976 by the Marvin decision, palimony is available only when the cohabitants have lived together in a stable long-term relationship. Marvin v. Marvin, 557 P.2d 106 (Cal. 1976). Florida does not recognize palimony. Crossen v. Feldman, 673 So. 2d 903 (Fla. Dist. Ct. App. 1996). Additionally, Florida does not recognize an implied contract of marriage. However, Florida will recognize express contracts between unmarried parties as to the distribution of earnings, property, and support as long as illicit sexual relations were not a part of the consideration under the contract. Posik v. Layton, 695 So. 2d 759 (Fla. Dist. Ct. App. 1997).

Answer 125

In general, alimony may be modified, even when it has been deemed permanent. Additionally, if a party was not awarded alimony initially and the court did not reserve judgment to award alimony in the future, then no modification may be sought. The party seeking modification typically has the burden of establishing a significant change in circumstances in either (i) the needs of the dependent spouse or (ii) the financial abilities of the obligor that warrant the modification. As with child support, a party who willfully or voluntarily reduces her income will not receive a reduction in her support payments. Florida does not distinguish between the level of proof required for modifying a court-ordered obligation and one established in a property settlement agreement. Fla. Stat. § 61.14(7). To petition for a modification, either party may file a supplemental petition in the circuit court setting forth the modification grounds. If it was the court that issued the decree, then a new service of process is not required, and personal jurisdiction is retained so long as it was initially established. Notice of the hearing, however, is paramount. If it was not the issuing court, then service of process, personal jurisdiction, and notice of the hearing must be established.

Answer 126

Spousal support generally continues until the death of a spouse. Support is usually not included as a liability of the deceased spouse’s estate, unless specified by the court.

Answer 127

In most jurisdictions, including Florida, if the receiving spouse remarries, spousal support may be terminated. A subsequent annulment of the subsequent marriage generally does not revive a spousal-support obligation from a former marriage, even though an annulment usually results in a marriage being treated as invalid as of the date of its inception.

Answer 128

If the recipient spouse cohabits with someone who is not family, then spousal support may be modified or terminated if the recipient spouse’s need for the support decreases as a result of the cohabitation. The existence of a conjugal relationship is not necessary.

Answer 129

Factors the court will consider in determining whether a supportive relationship exists are: i) The period of time that has elapsed since the recipient spouse has lived with the other person in a permanent residence; ii) The extent to which the recipient spouse and the other person have held themselves out as a married couple; iii) Whether the recipient spouse and the other party have jointly contributed to the purchase of property, real or personal; iv) Whether the recipient spouse and the other party have contributed support to the children of one another; and v) The extent to which the recipient spouse and other person have supported each other or performed services of value for the other or the other’s company.

Answer 130

Cohabitation does not terminate alimony pendente lite, which is paid during the pendency of the divorce litigation.

Answer 131

Voluntary retirement is one of the factors that Florida will consider in connection with a claim of substantial change in circumstances.

Answer 132

Tax Consequences and Bankruptcy 1. Taxes During the Marriage For married couples, both parties are jointly and severally responsible for their tax obligations during the marriage, unless one of the parties can demonstrate that they were innocent in any fraud or wrongdoing toward the IRS.

Answer 133

Equitable distribution payments are not taxed in the same manner as regular income. Property that is transferred between divorcing spouses is tax-free at that time. The transferee’s tax basis is the same as the transferor’s, and the property becomes taxable when it is sold.

Answer 134

Alimony is considered taxable income to the recipient and is deductible by the payor. A parent cannot, however, deduct child-support payments as alimony or include them as income. The custodial parent automatically gets the child dependency exemption, unless the parties agree otherwise. Often, the parties agree to alternate the exemption. The parent that pays medical expenses may deduct those expenses.

Answer 135

Bankruptcy’s goals often conflict with the goals of divorce. In bankruptcy, support of any kind is nondischargeable; however, collection of arrears, if reflected in a final judgment, will be stayed and possibly reduced. Nonsupport obligations may be dischargeable in bankruptcy. Attorney’s fees are often treated as support. The characterization of payments upon divorce is important in determining if a payor spouse will be able to avoid those payments in the future.

Answer 136

The obligation of child support falls on the child’s parents. Questions may arise, however, as to the identity of the child’s father. Under Florida law, any expectant woman or mother of a child, any man believing to be the father of a child, or any child, may bring an action for paternity when paternity has not otherwise been established. Fla. Stat. § 742.011. Once paternity has been established, the court may also award costs associated with the birth, including hospital and medical expenses, attorney’s fees, child support, parental responsibility, and time-sharing. Fla. Stat. §742.031. The court retains jurisdiction to modify the order later. Fla. Stat. §742.06. If a man fails to file a claim of paternity with the Florida Putative Father Registry, he may be estopped from filing a paternity action establishing his paternity of a child when a petition for termination of parental rights is filed.

Answer 137

If there is a question as to paternity, a court may order genetic testing of the child, the biological mother, and the possible fathers to determine paternity. Fla. Stat. § 742.12(1). The order may be sua sponte or at the request of a party. If the defendant in a paternity matter is indigent, he is entitled to genetic testing at the state’s expense to establish or disprove paternity. Little v. Streater, 452 U.S. 1 (1981); Fla. Stat. §409.256(4)(c)(7). If the particular case involves more than one party claiming paternity of a child, the court must consider the best interests of the child and the rights of the legal parent before ordering the test. See Privette v. State Dep’t of Health & Rehab. Serv., 585 So. 2d 364 (Fla. Dist. Ct. App. 1991) (dispute between husband of biological mother, who was deemed the father based on marital presumption, and another man). Once the results have been obtained, they are admissible absent any objections, which must be filed with the court at least 10 days prior to the hearing. Florida presumes paternity when the test results reveal a statistical probability of 95% or greater that the alleged father is the biological father. Fla. Stat. § 742.12(4). If the presumption is not rebutted by either party, the court may enter a summary judgment of paternity. If the test results demonstrate that the alleged father is not the biological father of the child, then the case is dismissed with prejudice. A party may apply for a retest if the results are disputed, at the expense of the disputing party, if the request is reasonable.

Answer 138

A time limit on the filing of a paternity petition in order to secure support from the purported father is invalid unless there is a reasonable opportunity to pursue such an action, and the limit is substantially related to the government’s interest in restricting such an action (e.g., prevention of fraudulent claims). Otherwise, the time limit is a violation of the Equal Protection Clause of the U.S. Constitution because it subjects illegitimate children to restrictions not imposed on legitimate ones. Pickett v. Brown, 462 U.S. 1 (1983).

Answer 139

There is a marital presumption that a child born to a married woman is the child of that woman and her husband. In Florida, for the marital presumption to apply, the child must be born of a valid marriage. Unlike the majority rule, if the marriage is void or later annulled, the child will no longer be considered a marital child. If the marriage is voidable, but not annulled, the child is still a marital child. If the marriage is of questionable validity, it is public policy to declare the child to be marital. Pitcairn v. Vowell, 580 So. 2d 219 (Fla. Dist. Ct. App. 1991). A child born within nine months of the termination or dissolution of a marriage, or the death of the husband, will be considered a marital child. The marital presumption may be rebutted with clear and convincing evidence. If the parents of the child marry after the birth of the child, then the child is marital, and upon payment of costs, the paternity petition is dismissed. Fla. Stat. §742.091. The establishment of a child-support obligation in a final judgment of dissolution is a final determination of paternity. D.F. v. Dep’t of Revenue, 823 So. 2d 97 (Fla. 2002).

Answer 140

Florida has an irrebuttable presumption that a child born during a valid marriage by artificial insemination is a marital child so long as both spouses have consented in writing to the insemination procedure. Once a spouse has expressly consented, his duty to support the child may be enforced. Fla. Stat. §742.11.

Answer 141

Estoppel A husband who is not the biological father of his wife’s child may be estopped from denying his obligation to pay child support. Under the doctrine of equitable estoppel, the husband may be required to pay child support when: i) There is a representation by the husband that he would provide for the child; ii) The wife relied on his representation; and iii) The wife suffered an economic detriment as a result of the reliance (e.g., lost the opportunity to obtain child support from the child’s biological father).

Answer 142

In Florida, the doctrine has been held to be inapplicable when the only misrepresentation is the one provided in the original birth certificate, and no misrepresentation was made to a spouse or child. Albert v. Albert, 415 So. 2d 818 (Fla. Dist. Ct. App. 1982); cf. Marshall v. Marshall, 386 So. 2d 11 (Fla. Dist. Ct. App. 1980).

Answer 143

Paternity also may be established by the express acknowledgment of the father. While the acknowledgment must be in writing, even an informal writing will be sufficient to establish paternity. Fla. Stat. § 742.10. In Florida, it is a misdemeanor in the first degree for any type of publication—including but not limited to radio, newspaper, and magazine—to publish the named parties to a paternity action, except when it is for the purpose of service by publication. Fla. Stat. § 742.09.

Answer 144

The statute of limitations for a paternity action, regardless of whether it is for support or intestacy, is four years from the time the child reaches the age of majority. Fla. Stat. §95.11(3)(b). Retroactive support may be ordered up to 24 months prior to the filing of the petition. Fla. Stat. § 61.30(17). The defense of laches is generally inapplicable to an award of retroactive support. Cartee v. Carswell, 425 So. 2d 204 (Fla. Dist. Ct. App. 1983). There is no time limit for motions for relief from judgment based on the filing of a fraudulent financial affidavit in paternity or marital cases. The fraud must be established by a preponderance of the evidence. Fla. Fam. L. R. P. 12.540.

Answer 145

When a man is determined not to be the biological father of a child, he may petition for the disestablishment of paternity and for termination of his child-support obligation. Service on the mother or custodian of the child must be effectuated. To petition the court, the man must provide the following: (i) an affidavit regarding newly discovered evidence that has come to light since the establishment of paternity or a child-support obligation, (ii)scientific testing results that exclude the man as the biological father or an affidavit attesting that he had no access to the child to perform such testing, and (iii)proof, via an affidavit, that he is current or has substantially complied with his child-support obligation and that arrears, if any, are attributable either to an inability to pay or to just cause.

Answer 146

The only statutory reliefs available are limited to child support and paternity. Child support may not be retroactively recovered, nor is the legitimacy of a child born during a marriage affected. The paternal status of the father shall remain until the date of the order disestablishing paternity, and all actions that were made while the paternal status of the father was conferred are retroactively confirmed. Relief must be granted when (i) the child is under the age of 18 at the time the petition was filed, (ii) the scientific testing was accurate, (iii) the man did not subsequently adopt the child, (iv) the child was not the product of artificial insemination while the man was married to the mother, and (v) the man did not thwart the biological father from asserting his rights. The court may not grant relief if, after determining that he is not the biological father, the man voluntarily acknowledged paternity in an attested document, married the mother and voluntarily assumed parental obligations (including the duty of support), voluntarily and expressly promised to support the child, or disregarded the official notice in regard to submission of scientific testing.

Answer 147

With respect to proceedings to establish or enforce child support or to determine parentage, a court obtains personal jurisdiction over an out-of-state parent pursuant to a long-arm provision in the Uniform Interstate Family Support Act (“UIFSA”), which has been adopted by every state. The ways in which a court can obtain personal jurisdiction are: i) Personal service on the defendant parent; ii) Consent of the defendant parent, such as by entering an appearance in the action; iii) Current residency with the child in the state; iv) Past residency in the state and the provision of prenatal expenses or support for the child; v) Residency of the child in the state as a result of acts or directives of the parent defendant; vi) Parent defendant engaged in sexual intercourse in the state, and the child may have been conceived by that act; vii) Parent defendant asserted parentage in the putative father registry maintained by the state; or viii) Any other basis consistent with federal and state constitutions for the exercise of personal jurisdiction.

Answer 148

It is important to note that the United States Supreme Court has not yet spoken on the constitutionality of UIFSA’s long-arm provisions. Several states, however, have upheld the provision as meeting the requisite due-process requirements. See, e.g., Poindexter v. Poindexter, 594 N.W.2d 76 (Mich. Ct. App. 1999); County of Humboldt v. Harris, 254 Cal. Rptr. 49 (Cal. Ct. App. 1988). In so holding, state courts have relied on the voluntary nature of the sexual act or conduct, the fact that conception is a logical result of that conduct, and the state’s strong interest in protecting the minor child in all regards, including financially. As the obligation to support a child extends to at least the age of majority, there is no time limit on the assertion of jurisdiction under this statute. UIFSA §201, cmt. For the jurisdictional requirements for the modification of a child-support order, see §V.J.3., Jurisdiction for Modification of Support, infra.

Answer 149

CHILDREN Parental Responsibility and Time-Sharing In Florida, both parents have parental responsibility and “time-sharing” with their children. Each minor child is to have frequent, continuing contact with both parents and the parents are encouraged to share the rights, responsibilities, and joys of raising their children. Fla. Stat. § 61.13(2)(c). The court will order a time-sharing schedule that is in the best interest of the children.

Answer 150

1. Parental Responsibility a. Shared parental responsibility Shared parental responsibility generally requires that the parents are both willing and able to cooperate with respect to the well-being of the child. In Florida, the court prefers a shared parental responsibility arrangement unless it is determined to be detrimental to the child’s best interests. If such an arrangement is deemed detrimental, then the court may order sole parental responsibility, with or without time-sharing to the other parent.

Answer 151

Sole parental responsibility is given to one parent when the court finds the other parent unfit and unable to provide care for the children. The parent with sole parental responsibility has all decision-making rights.

Answer 152

Parallel shared parental responsibility splits the decision-making rights based on subject, such as medical and education decisions. This is appropriate when one parent has a special skill or knowledge in an area that makes that parent better able to make the best decisions. For instance, if one parent is a doctor and the other a teacher, medical decision-making rights would be given to the doctor while education-decision rights would be given to the teacher.

Answer 153

A time-sharing schedule is a plan specifying which parent minor children will be with at certain times, including overnights and holidays, as well as providing guidelines for extra-curricular activities, education, child care and foreign travel. The parents are encouraged to create a time-sharing schedule, but if they cannot agree or if the court does not approve the plan, the court will establish the schedule. Upon proper showing, a court may impose restrictions or conditions on time-sharing, but will rarely deny time-sharing completely. Fla. Stat. § 61.046.

Answer 154

Best Interests and Welfare of the Child Standard The standard for determining parental responsibility is the best interests and welfare of the child. Fla. Stat. § 61.13. Generally, a parent is in the best position to care for a minor child, unless the parent is determined to be unfit. Neither parent has a superior claim over the other parent regardless of the age of the child. Florida law, however, provides that in order to facilitate what is in the child’s best interests, one parent’s residence is designated the primary residence of the child even when a shared arrangement exists. Parental responsibility, visitation, and child-support issues may be brought without a dissolution proceeding, even if the parties are married. If a dissolution proceeding is pending, however, the court that hears the dissolution matter will also hear all issues relating to the children. Fla. Stat. §§ 61.09, 61.13.

Answer 155

In determining the best interests of the child, the court will consider all relevant factors, some of which are listed below: i) The ability of the parents to provide basic needs, including a consistent routine; ii) The physical and mental health and moral fitness of the parents; iii) A willingness to promote a relationship with the noncustodial parent and to be reasonable when changes are required; iv) Continuity of care in a child’s life; v) The primary caretaker of the child before, after, and during the litigation and the tasks assumed by both parents and third parties; vi) The wishes of the child, if of a mature age; vii) The geographic location of each parent, with consideration for the amount of traveling time required for school-aged children; viii) The presence of domestic violence between the parents or evidence of child abuse or neglect, including knowingly providing the court with false information in regard to this factor; and ix) The ability of each parent to protect the child from the litigation.

Answer 156

In Florida, a parent’s religion may be a factor considered by the court in determining best interest, but parental responsibility may not be conditioned upon the restriction of a parent’s right to free exercise of religion. Rogers v. Rogers, 490 So. 2d 1017 (Fla. Dist. Ct. App. 1986). Race, however, may not be a factor. Palmore v. Sidoti, 466 U.S. 429 (1984).

Answer 157

Parents’ Sexual Conduct In Florida, courts may not consider the parents’ prior sexual conduct, including gay or lesbian relationships, in making parental responsibility decisions, unless there is direct evidence, as opposed to mere speculation, that it will have a negative impact on the child. Jacoby v. Jacoby, 763 So. 2d 410 (Fla. Dist. Ct. App. 2000).

Answer 158

Legal parents are presumptively entitled to share parental responsibility of their children in cases against third parties, including grandparents or stepparents, unless it can be established that the legal parent is unfit, that awarding parental responsibility to the legal parent would be detrimental to the child, or that the parent has terminated his rights. A stepparent or grandparent, however, would receive priority over a stranger. In Florida, a nonparent is barred from initiating a custody proceeding against the natural parents of the child unless it is brought as a part of a dependency proceeding. As with support obligations, parental responsibility may turn on paternity issues. See §IV., Paternity, supra.

Answer 159

Florida will consider the wishes of the child if the court determines that the child has sufficient maturity to express a preference. Although age is not the sole factor in determining whether a child should be consulted, it is considered by the court in determining the weight that the preference should receive. If a child is consulted, the court evaluates the reasons behind her preference. In Florida, there is no statutory age by which a minor child is given the absolute choice to determine custody. Except in cases of uncontested adoptions, no child shall be deposed or brought to a deposition in any family-law case, brought to court to attend a hearing or appear as a witness, or subpoenaed to appear at a hearing without prior order of the court based on good cause, absent an emergency. Fla. Fam. L. R. P. 12.407.

Answer 160

In a highly contested parental responsibility case, legal counsel may be appointed for the child. This attorney’s duty is to advocate for the child’s preferences and to act on her behalf. The attorney’s fees are usually paid by the parents.

Answer 161

Courts traditionally avoid separating siblings from each other in order to maintain stability and promote sibling relationships.

Answer 162

Nearly every jurisdiction, including Florida, requires the court to consider the presence of domestic violence between the parties when determining parental responsibility. If the domestic violence resulted in a conviction of a misdemeanor of the first degree or higher, there is a rebuttable presumption of detriment to the child, and shared decision-making and time-sharing shall not be granted unless the presumption is rebutted. A convicted parent is not, however, alleviated of his child-support obligation.

Answer 163

In Florida, prior to the court entering a final judgment concerning parental responsibility, each party must complete a court-approved or court-sponsored parenting course. The failure to complete the required course may result in sanctions and/or other actions, including the initiation of contempt proceedings. Fla. Stat. § 61.21.

Answer 164

The parties, or the court when the parties cannot agree, will develop a parenting plan, which governs the relationship between the parties as it relates to decisions that must be made regarding the minor child. The parenting plan must describe, in detail, (i) the responsibility for the daily tasks associated with child rearing and how such responsibility will be shared between the parties, (ii) the time-sharing schedule, (iii) the methods that each party will use to communicate with the child, and (iv) the responsibility for communication about and completion of forms relating to health, education, and other activities. When the parenting plan is agreed to by the parties, it also must be approved by the court. Similar to what it does in a mediation situation, the court can, to facilitate the development of the parenting plan, appoint a parenting coordinator who will assist the parties in the resolution of issues concerning the parenting plan. Generally, the communications between the parties and the parenting coordinator are confidential. Fla. Stat. § 61.125.

Answer 165

A requirement that each party foster a loving relationship between the child and the other parent may be included in a parental responsibility or time-sharing order and, if included, is not in violation of a parent’s First Amendment rights.

Answer 166

The Keeping Children Safe Act of 2007 creates a rebuttable presumption that time-sharing or contact is contrary to the best interests of the children when a parent or other caregiver is alleged to have committed or has been found to have committed sexual abuse of a child. Visitation or other contact with an individual to whom this presumption applies shall be permitted only after a hearing and order by the court. Fla. Stat. § 39.0139.

Answer 167

To assist the court in making a determination in contested custody cases, the court may order the Department of Children and Families (“DCF”) or a designated member of the court staff to conduct an investigation into the facts of each case. Specifically, the designated person may conduct home visits, conduct interviews with the parties and the child, and order a psychological evaluation of the parties or the child. The court may consider the report and/or recommendation of the social investigator in rendering its decision. If one of the parties disagrees with the report or recommendation, the court may order another evaluation of the child by a different investigation, but only upon the showing of good cause. Fla. Stat. § 61.20; Fla. Fam. L. R. P. 12.363.

Answer 168

Enforcement, Modification, and Termination of a Custody Order 1. Enforcement a. Remedies available A party seeking enforcement of parental responsibility and time-sharing orders can request assistance through the court system. Interference or refusal to comply with a time-sharing order shall result in an award of a sufficient amount of extra time-sharing to make up for the missed time—taking into consideration the child’s best interests when fashioning the award. Additionally, the court may remedy the denial by imposing other sanctions, including court costs and attorney’s fees, attendance at a parenting course, imposition of community service, modification to the parenting plan, or imposition of the financial burden of the travel expenses that are associated with time-sharing when the noncustodial parent lives more than 60 miles from the custodial parent. Fla. Stat. § 61.13(4)(c). A party cannot be denied time-sharing for his failure to pay child support or merely based on a child’s wishes. Custody and visitation orders between states are enforceable under the Full Faith and Credit Clause if the other state’s decree has been registered in the state that is seeking enforcement (see §V.E.7., Enforcement of Another State’s Orders, infra).

Answer 169

b. Restrictions on removing the child from the state If the court determines that there is a reasonable risk that one parent may violate the court’s order regarding time-sharing or parental responsibility by removing the child from Florida or from the United States, or otherwise concealing the location of the child, then the court may (i) require the surrender of the child’s passport, (ii)require the posting of a bond or other security, (iii) restrict the ability of the parent to take the child to a country that is not a part of the Hague Convention unless a written agreement has been received from the other parent, or (iv)order that the child not be removed from the state or country without the express notarized permission of both parents or by court order. Fla. Stat. § 61.45. Additionally, both parents, by stipulation, may include any of the above restraints in the parenting-time order.

Answer 170

Modification a. Change in circumstance Once a parental responsibility order has been entered, absent relocation, a state retains subject-matter jurisdiction to modify the order while the child is a minor. To modify an order, Florida applies a change in circumstance standard, which requires a substantial, material, and unforeseen change since the issuance of the prior order. The change must be permanent, involuntary, material, and unforeseeable at the time the final judgment was entered. Additionally, the modification sought must be in the best interests of the child. The purpose behind requiring a substantial change in circumstances is to promote stability in the child’s life. Violating a child-visitation order will not automatically change the custodial parent; rather, the violation becomes a factor to consider in modifying an order. Further, the failure to pay child support is not a basis to withhold visitation or modify an existing child-custody order. In Florida, if the parental responsibility or time-sharing order was a part of a dissolution proceeding, the court that entered that order retains jurisdiction to modify it.

Answer 171

Relocation If the custodial parent proposes relocating with the minor child, and the relocation will significantly impair the noncustodial parent’s ability to see the child under the court-ordered visitation schedule, then such relocation will usually constitute a substantial change in circumstances warranting a modification. Note that prior to discussing the modification, if any, the court must provide the custodial parent with permission to relocate after applying the factors outlined below.

Answer 172

In Florida, a parent designated as the primary residential parent of the child who desires to relocate 50 or more miles from her current residence must obtain written consent from any party who has time-sharing with the child. If written consent is either not obtained or is denied, then the parent seeking to relocate must seek permission from the court. Proof of an offer of employment must be supplied with the petition seeking relocation if that is one of the reasons for the request. If no objection to the petition to relocate is received, then the petition will be granted, provided that the rights and the welfare of the child are not prejudiced. If an objection is received, then the court still may grant the relocation on a temporary basis if it appears that the petition will likely be successful. Provided that a legitimate purpose for the move can be ascertained, the trend is that the court likely will permit the custodial parent and child to relocate. An application to relocate, however, should be made in advance of the relocation, and it must be based on anticipated present facts, not on speculative ones. See, e.g., Arthur v. Arthur, 35 Fla. L. Weekly 38 (Fla. 2010). The failure to comply with these rules requiring pre-relocation approval can subject the violator to contempt proceedings as well as proceedings to compel the return of the child to Florida either temporarily or permanently. In addition, this failure can be a factor in determining whether to modify the parenting plan or the access or time sharing plan.

Answer 173

Among the factors that the court will consider in determining whether the move is in the child’s best interests are the following: i) The nature, quality, and involvement with the child of both parents, of siblings, and of other important people, as well as the ability to preserve those relationships with adequate arrangements; ii) The age and the needs, including any special needs, of the child and the impact that the proposed relocation will have on the child’s development; iii) The current employment and financial circumstances of each parent, including the employment or other opportunities available to the objecting parent if relocation is granted; iv) The child’s preference, if the child is of sufficient maturity; v) Whether the parent seeking relocation has any history of promoting or preventing parenting time with the nonrelocating parent; vi) Whether the relocation will enhance the child’s quality of life; vii) The reasons each parent has in requesting or opposing the relocation; viii) Whether the objecting parent is current with her support obligations; ix) History of domestic violence or substance abuse of either parent; and x) Any other factors that affect the best interests of the child. Fla. Stat. § 61.13001.

Answer 174

It is important to note, however, that the applicable standards may be even more restrictive when the parents share joint custody of the minor child. c. Military service The Uniform Deployed Parents Custody and Visitation Act (UDPCVA), enacted in Florida in 2018, integrates with the UCCJEA (see § V.E., infra), but applies specifically to parents who are also service members. Among other things, the UDPCVA provides that courts cannot consider a parent’s past deployment or possible future deployment in determining the best interests of the child. The act also sets out a procedure for out-of-court custody agreements, sets guidelines for temporary custody agreements during deployment, and prohibits entry of permanent custody orders before or during deployment without the service-member parent’s consent. In addition, upon the motion of the deploying parent, and if in the best interests of the child, the deployingparent may designate a person or persons to exercise temporary caretaking authority on the parent's behalf during deployment. The designation must be limited to an adult family member or an adult who is not a family member with whom the child has a close and substantial relationship. Fla. Stat. § 61.703 et seq.

Answer 175

Termination A parental-responsibility order terminates upon the custodial parent’s death or upon the child reaching the age of majority. In cases of death, the surviving parent generally receives custody of the child.

Answer 176

Visitation and Parenting Time Generally, the noncustodial parent is allowed reasonable visitation (“time-sharing” or “parenting time”) with a minor child. As with custody, the standard to determine visitation is the best interests of the child. Because parents have a constitutional right to have contact with their children, the denial of visitation is very unusual and is typically only done when such visitation would seriously endanger a child’s physical, mental, or emotional health. The court will, however, place restrictions on the exercise of visitation, such as supervised parenting time or a denial of overnight visits. The parents, by agreement, usually determine the time, place, and circumstances of the visitation. If the parties cannot agree on the circumstances, then the court will determine the particular circumstances surrounding the parenting time.

Answer 177

Florida, by statute, permits parties, by either court order or agreement, to attend mediation in order to resolve their family conflicts, including parental responsibility and time-sharing. Fla. Stat. § 61.183. If an agreement is reached with the mediator, then it may be approved by the court after review by each party’s respective legal counsel. If approved, it becomes enforceable in the same manner as any other court order. All proceedings, including the information contained in the mediator’s files, are confidential and inadmissible in court unless otherwise agreed to in writing by the parties. Fla. Stat. § 44.1011.

Answer 178

Third Parties In some situations, third parties (e.g., grandparents, stepparents, gay or lesbian nonbiological co-parents) may seek parenting time. Florida has declared various statutory provisions regarding grandparent visitation rights unconstitutional, as they limit a parent’s right to privacy absent the demonstration of a compelling state interest in preventing harm to the child. Belair v. Drew, 776 So. 2d 1105 (Fla. Dist. Ct. App. 2001). Courts examining the request of grandparents for visitation will focus on the decision of the fit parents, statutory factors, and what is in the best interests of the child.

Answer 179

a. “Special weight” to a fit parent’s decision A fit parent has a fundamental right to the care, custody, and control of his children. Troxel v. Granville, 530 U.S. 57 (2000). Troxel requires that state courts give “special weight” to a fit parent’s decision to deny nonparent visitation; “special weight” has been held to mean a very significant difference.

Answer 180

b. Unwed biological father An unwed biological father has a substantive due process right under the U.S. Constitution to have contact with his child. However, this right exists only when the father demonstrates a commitment to the responsibilities of parenthood (e.g., participation in child rearing or providing financial support). Lehr v. Robertson, 463 U.S. 248 (1983). This right was also recognized for an unwed biological mother in a lesbian relationship. D.M.T. v. T.M.H, SC12-261 (Fla. 2013). In addition, if the mother is married to another man and refuses to join in a paternity petition, a state may preclude the purported biological father from pursuing the paternity petition. Michael H. v. Gerald D., 491 U.S. 110 (1989).

Answer 181

2. Sexual Relationship or Cohabitation Courts are unlikely to restrict visitation because of a parent’s cohabitation with another or because of a parent’s sexual relationship, unless the cohabitation or relationship has an adverse impact on the children. See French v. French, 452 So. 2d 647 (Fla. App. 1984) (total deprivation of visitation even when an adverse impact was determined to be unreasonably broad). In cases in which an adverse impact can be established, restricted, conditional, or supervised visitation is sufficient.

Answer 182

3. HIV/AIDS Courts cannot deny custody or visitation on the basis that a parent is infected with HIV/AIDS. A parent who is infected with HIV/AIDS, however, may be required to follow the recommended safety precautions of the U.S. Public Health Service’s Center for Disease Control and Prevention as a condition of the custody and time-sharing arrangement. Fla. Stat. § 61.13(6).

Answer 183

4. Electronic Communication Electronic communication, including telephone calls, e-mail, and other related technologies, between a parent and child may be ordered by the court but may not supplant in-person contact. In Florida, there is a rebuttable presumption in favor of reasonable telephone communication, which must be ordered by the court unless the presumption is rebutted. Safeguards and guidelines may be established, and costs may be allocated between the parties based on their financial resources, in order to implement the electronic communications. Access information must be furnished between the parents to facilitate the communication, including notification of any changes to that information within seven days of the change.

Answer 184

The amount of electronic communication granted or utilized may not be used in calculating child support or considered as a sole determinative factor in a relocation case. The court must consider the following factors when ordering electronic contact: (i) whether it is in the child’s best interests, (ii) whether it is reasonably available and affordable to the parties, and (iii) whether either parent has a history of substance abuse or domestic violence. Unless the court has prohibited electronic communication, a party may seek modifications to an existing parent-time order to add electronic communications with the child without demonstrating a substantial change in circumstance.

Answer 185

Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") The purpose of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) is to prevent jurisdictional disputes with courts in other states on matters of child custody and visitation. Florida has enacted the UCCJEA. Adjudication under the UCCJEA requires that the court possess subject-matter jurisdiction.

Answer 186

Initial Custody Determination (Home-State Jurisdiction) A court has subject-matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state is: i) The child’s home state and has been the home state for a period of six months or since birth, if the child is less than six months old; or ii) Was the child’s home state in the past six months and the child is absent from the state, but one of the parents (or guardians) continues to live in the state.

Answer 187

2. Significant-Connection Jurisdiction A court can enter or modify an order if (i) no other state has or accepts home-state jurisdiction, (ii) the child and at least one parent have a significant connection with the state, and (iii) there is substantial evidence in the state concerning the child’s care, protection, training, and personal relationships.

Answer 188

3. Default Jurisdiction If no state has jurisdiction through home state jurisdiction or substantial connection jurisdiction, a court in a state that has appropriate connections to the child has jurisdiction.

Answer 189

4. Exclusive Continuing Jurisdiction Courts that make the initial ruling in a custody case have exclusive jurisdiction over the matter until the court determines that: i) The parties no longer reside in the state; or ii) The child no longer has a significant connection to the state, and any substantial evidence connected to the child’s condition is no longer available in the state.

Answer 190

5. When the Court Can Decline Jurisdiction If a court has either initial or exclusive continuing jurisdiction, then the court may decline to exercise such jurisdiction if it finds the forum to be inconvenient after considering the following factors: i) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child; ii) The length of time the child has resided outside of the jurisdiction; iii) The distance between the competing jurisdictions; iv) The parties’ relative financial circumstances; v) Any agreement of the parties regarding which state should assume jurisdiction; vi) The nature and location of the evidence required to resolve the pending litigation, including the child’s testimony; vii) The ability of each state’s court to decide the issue expeditiously and the procedures necessary to present the evidence; and viii) The familiarity of each state’s court with the facts and issues in the pending litigation.

Answer 191

6. Temporary Emergency Jurisdiction A court that does not otherwise have jurisdiction may obtain temporary emergency jurisdiction and enter an order if the child is in danger and requires immediate protection. If a prior custody order is in existence, the court rendering the emergency order must allow a reasonable time for the parties to return to the state of original jurisdiction and argue the issues at hand before that court. If there is no prior custody order, the emergency order remains in effect until a decision is rendered by the child’s home state. If no future determination is made, then the emergency order continues in full force and effect.

Answer 192

7. Jurisdiction Declined by Reason of Conduct If a court has jurisdiction because a person seeking to invoke its jurisdiction has engaged in “unjustifiable conduct,” such as wrongfully removing the child from another state, the court must generally decline jurisdiction. However, the court may exercise jurisdiction if: i) The court obtains temporary emergency jurisdiction; ii) The parents and all persons acting as parents have acquiesced in the exercise of jurisdiction; iii) A court of the state otherwise having jurisdiction determines that this state is a more appropriate forum for the action; or iv) No court of any other state would have initial child custody jurisdiction, exclusive continuing jurisdiction, or jurisdiction to modify a determination.

Answer 193

8. Enforcement of Another State’s Orders a. Registration of order A custody order from another state can be registered with or without a simultaneous request for enforcement. Typically, most jurisdictions require at least one certified copy of the order to the appropriate entity. The registering court can then grant any relief available for enforcement of the registered order.

Answer 194

b. Expedited enforcement of a child-custody determination The UCCJEA utilizes a process similar to habeas corpus. After a petition is filed, the respondent must appear in person at a hearing held on the first judicial day after service of the order or, if that date is impossible, on the first judicial day possible. The petitioner will be awarded immediate physical possession of the child unless: i) The custody or visitation order was not registered; and a) The issuing court did not have jurisdiction; b) The order had been stayed or vacated; or c) The respondent was entitled to notice, but notice was not given before the court issued the order for which enforcement is sought; or ii) The order was registered and confirmed, but the order was stayed, vacated, or modified.

Answer 195

Parental Kidnapping Prevention Act ("PKPA") The Parental Kidnapping Prevention Act (“PKPA”), despite its name, applies not only to parental kidnapping cases, but also to civil interstate custody disputes, including visitation rights. Under the Supremacy Clause of the U.S. Constitution, the PKPA takes precedence over any conflicting state law. See, e.g., Murphy v. Woerner, 748 P.2d 749 (Alaska 1988). The PKPA discourages forum shopping between states and allocates the powers and duties between states when a child-custody dispute arises. 28 U.S.C. § 1738A. If a jurisdiction fails to follow the PKPA’s rules regarding jurisdiction, which are substantially similar to the UCCJEA rules (see § V.E., UCCJEA, supra), the order of the noncompliant jurisdiction is not entitled to full faith and credit.

Answer 196

In addition to the UCCJEA and the PKPA, Florida criminal law provides that it is a felony in the third degree to remove a child from the state when there is notice of a pending child-custody proceeding and the party removing the child has notice of that proceeding, or when an order barring the removal of the child has been entered of which the removing party is aware. The party removing the child may avail herself of the defense that she had a reasonable belief that removing the child was necessary under the circumstances to protect the child from abuse. Fla. Stat. § 787.04.

Answer 197

Parental Consent In certain circumstances, such as with medical procedures, parental consent must be obtained. This policy holds regardless of the parents’ marital status. A doctor who performs surgery on a minor child without parental consent is liable in tort. There are some exceptions to this general rule, such as in case of an emergency, when time is of the essence. Some states may permit an exception to the general rule of consent when the child is older or deemed mature, or when the medical concern is related to public health, as in Florida with the examination or treatment of a venereal disease.

Answer 198

1. Religious Beliefs At times, a parent’s religious beliefs can contradict what may be in the child’s best interest. This issue is often seen in cases when a child needs medical treatment that goes against a parent’s religious beliefs; the court can intervene to prevent serious harm to the child’s health, under the theory of parens patriae. Prince v. Massachusetts, 321 U.S. 158, 170 (1994) (“Parents may be free to become martyrs themselves. But it does not follow they are free…to make martyrs of their children”). In those situations, the court can declare a child neglected and order medical treatment. Under the parens patriae doctrine, the state has the ultimate and final responsibility for the care and custody of the child located within that state.

Answer 199

2. Right of the Child The parental right to make certain decisions regarding a child is not absolute and may not erode a child’s constitutional rights, including the right to privacy. An example of this is the sterilization of a mentally incompetent child. Even if the parent believes that the sterilization procedure is in the incompetent child’s best interest, the proponent must establish that it is indeed in her best interests by clear and convincing evidence.

Answer 200

3. Upbringing A parent has a right to raise her child as she sees fit. Wisconsin v. Yoder, 406 U.S. 205 (1972). This right of parents extends to decisions relating to the religious upbringing of a child.

Answer 201

Child Support Both parents are legally required to support their minor children. Imami v. Imami, 584 So. 2d 596 (Fla. Dist. Ct. App. 1991). Florida’s general viewpoint is that both parents share that duty equally, unless circumstances require a deviation. Child support is based on the needs of the child taking into account a parent’s ability to pay. In Florida, the obligation to provide support exists until the child turns age 18. If the child is unable to be self-supporting, either on a permanent or temporary basis, then the court may extend a parent’s obligation when the inability is due to a physical or mental condition that exists at the time the child reaches the age of majority. Additionally, in Florida, child support may be extended for a child between the ages of 18 and 19 who is in high school on a full-time basis working toward a diploma. Fla. Stat. § 743.07(2). The payment of child support is entirely separate from visitation rights. Such rights cannot be denied for nonpayment of support.

Answer 202

1. Child’s Right to Support Although it is typically paid by one parent to another, the right to receive child support belongs to the child. Parents cannot bargain away child-support payments, regardless of whether they intended to have a child. Parents can enter into private agreements regarding the payments but cannot agree to any release or compromise that would negatively affect the child’s welfare. Armour v. Allen, 377 So. 2d 798, 799–800 (Fla. Dist. Ct. App. 1979).

Answer 203

2. Amount of Child Support All jurisdictions, including Florida, have adopted child-support guidelines to streamline the process by using objective bases for determining child-support awards. Child-support awards are typically based on income from any source, including wages, interests and dividends, rental income, and other income received such as retirement benefits, capital gains, and social security income. The guidelines are applied in all cases regardless of marital status. Florida created the child-support guidelines based upon the following three public-policy principles: i) Each parent has a fundamental obligation to support any minor or legally dependent child; ii) The guidelines schedule is based on the parents’ combined net income estimated to have been allocated to each child as if the parents and children were living in an intact home; and iii) The guidelines encourage fair and efficient settlement of support issues and minimize the need for litigation. Fla. Stat. § 61.29.

Answer 204

In Florida, for any proceeding establishing or modifying child support, both parents must file an affidavit establishing their net income. Failure to do so will result in the court imputing a salary to the uncooperative participant based upon census data of the average income of full-time employees. Additionally, the Family Law Rules require that each party must file with the court a child-support guidelines worksheet. Fla. Fam. L. R. P. 12.285(k). The failure to file a copy of the guidelines is grounds for reversal. See McKenzie v. Dep’t of Revenue, 981 So. 2d 1289 (Fla. Dist. Ct. App. 2008).

Answer 205

Calculating support Florida has adopted an income-shared model, which operates on the theory that a child should receive the same proportion of parental income as if the parties had continued to live together. To calculate support, each parent’s net income is added together, the court determines the correlating support amount set forth in the statutory chart, and the statutory amount is then allocated to each parent based on the party’s respective net income. There is a rebuttable presumption that the amount calculated pursuant to the child-support guidelines is correct. 42 U.S.C. §667.

Answer 206

If a parent is unemployed or underemployed and fails to file a financial affidavit, then the court may impute an income to calculate the child-support award so long as the reason for the circumstances is not based on a physical or mental incapacity or similar reason under which the parent has no control. The party seeking to impute income must (i) prove by competent substantial evidence that the noncomplying parent is voluntarily unemployed or underemployed and (ii)identify the amount and source of imputed income through evidence of income from available employment that the noncomplying parent is qualified to perform. Fla. Stat. § 61.30. Conversely, if the parent(s) earn a significant income far exceeding the needs of the child, then the court may modify the award to provide solely for the child’s needs but may generously define the amount. Once a child-support award has been paid, the obligor is not permitted to monitor how the money is expended.

Answer 207

Voluntary underemployment or unemployment is distinguishable from a voluntary income reduction on a temporary basis that will assist in the party’s long-term financial well-being, such as enrolling in college to earn a degree. If a party is seeking a voluntary income reduction, it must first be approved by the court if that party is going to seek a reduction in his child-support amount or an increase in the other party’s obligation.

Answer 208

b. Child-support guidelines Although there is a rebuttable presumption that the amount calculated under the child-support guidelines is correct, deviations are permitted as circumstances may warrant. After addressing any relevant factors, including those listed below, the court has the discretion to increase or reduce the child-support award by five percent from the guidelines amount. If the court determines that the amount set forth under the guidelines should be deviated from by more than five percent, then it must set forth specific findings explaining and supporting the deviation, including the amount that would have been awarded under the application of the guidelines. Fla. Stat. §61.30(1)(a). Some of the factors that the court can consider in determining whether a deviation is warranted are: i) The age(s) of the child(ren); ii) Unusual needs and unusual obligations (e.g., special education or medical expenses); iii) Standard of living; iv) Station in life; and v) The financial status and ability of each parent.

Answer 209

c. Substantial time calculations In addition to ordering discretionary deviation from the child-support guidelines, a judge must generally order a child-support amount that deviates from the guidelines when any of the children are required by court order, mediation agreement, or arrangement, to spend a substantial amount of time with the parent paying support, regardless of whether the arrangement is permanent or temporary. “Substantial,” is an arrangement in which the parent paying support has the child at least 73 overnights per year. Fla. Stat. § 61.30(11)(b)(1)–(8). However, even an order for equal time-sharing with regard to a child does not preclude a court from ordering child support for that child. Fla. Stat. § 61.13(5).

Answer 210

d. Medical insurance Florida requires that all child-support orders contain provisions for health insurance for the minor children, if the insurance is accessible to the child and reasonable in cost. The court will presume that the cost of the insurance is reasonable when the cost of adding health insurance for the child(ren) does not exceed five percent of the gross income of the parent responsible for providing the insurance. Fla. Stat. §61.13(1)(b). Additionally, the court must include a provision for the payment of uncovered medical or dental expenses, which is typically apportioned between the parties. If the parent obligated to provide insurance fails to provide it, then the court may require her employer or union to enroll the minor child.

Answer 211

e. Post-secondary education In Florida, there is no obligation or duty on the parent to contribute to a post-secondary or college education. A parent, however, may choose to support a child’s post-secondary education and enlarge her support obligations by agreement. A court’s award of post-majority support orders is erroneous unless the child is legally or mentally dependent after the age of 18. Grapin v. Grapin, 450 So. 2d. 853 (Fla. 1984) (a disapproving court ordered college education payments or an increase in alimony to the economically disadvantaged spouse to assist that spouse in funding the college education).

Answer 212

f. Subsequent children If a party has children from other relationships born after the initial support obligation was established, then the subsequent children, as a rule, will not be considered by the court to determine the child-support amount and whether to deviate from the guidelines. The court may only consider subsequent children in a proceeding asking for an increase in support; their existence may not be used to justify a decrease in child support. In cases when the issue of subsequent children is raised, the court must consider the income of the other parent of the subsequent child. If the parent who has had subsequent children has taken on secondary employment whose purpose has been determined by the court to be primarily to support the secondary children, then the income from the secondary employment may be disregarded. Fla. Stat. § 61.30(12).

Answer 213

g. Childcare The court will allow the total amount spent on childcare to be credited to the paying parent and deducted from that parent’s child support obligations. Fla. Stat. § 61.30(7).

Answer 214

3. Modification of Child Support a. Substantial change in parent’s circumstances A child-support order may be modified if there is a substantial change in circumstances or the financial ability of either parent. Examples include a parent’s change in occupation, an increase in income, a decrease in health, or a remarriage that gives the parent additional family obligations. In Florida, if a person seeks a modification, to be compliant with the guidelines, there must be at least a 15% or $50 difference, whichever is greater, between the amount that would be ordered currently under the guidelines and the past award in order for it to constitute a substantial change in circumstances warranting the modification. The Florida courts will also consider the following factors in connection with a claim of substantial change in circumstances: (i) change in the financial ability of the obligor, the needs of the parties, and the needs of the child and (ii) a determination that health insurance is now readily available to at least one party. The procedure to modify child support in Florida is the same procedure used to modify alimony payments.

Answer 215

b. Change in the child’s circumstances Child support also may be modified when the child who benefits from the order becomes emancipated, gets married, becomes a member of the armed services, or dies. Fla. Stat. § 61.13. As with modifying alimony, the proof required to modify a court-ordered obligation is the same level necessary to modify an award agreed to by the parties. The burden of establishing the change in circumstances is on the parent seeking the modification. A modification award is made retroactive to the date of service of the motion on the opposing party, but support obligations that have accrued prior to that date generally may not be modified. 42 U.S.C. § 666(a)(9) (prohibiting retroactive modification of child support).

Answer 216

c. Incarceration If the modification is sought because of the obligor’s inability to pay as a result of incarceration, the obligor must file a petition with the court that previously entered the child-support order. Once that petition is filed, the modification request is held in abeyance, and the current child-support order is suspended. The monies due under the suspended order are still calculated but are not considered a nonmodifiable vested interest of the child. The petition is placed on the inactive calendar until the obligor is released from prison. Once the court is notified of the obligor’s release, which can be from either party, the court will hold a hearing and determine a realistic method to arrange for the payment of past-due, current, and future support. Dep’t of Revenue v. Jackson, 846 So. 2d 486 (Fla. 2003).

Answer 217

d. Termination of support Florida presumes that a parent’s obligation to pay support ends when the child reaches the age of majority, 18 years old, unless the child is unable to support himself due to a physical or mental disability. Additionally, Florida recognizes an exception to the presumption when the child is between 18 and 19 years old and attending high school. Termination of child support may also take place if the child marries, the parental rights are terminated, or the child dies.

Answer 218

Additionally, support may be terminated if a child is emancipated before the age of majority. To be emancipated, a minor child must be established as a self-supporting individual beyond the sphere of influence of his parents or independent of parental control. The mere employment of the child does not, by itself, establish emancipation. In addition, the birth of a child by an unemancipated child does not result in an automatic emancipation and termination of support. However, the support rights of an employable child are contingent on the compliance by the child with reasonable parental demands; an employable child who fails to comply risks loss of parental support.

Answer 219

e. Jurisdiction for modification of support Similar to the jurisdictional issues with child-custody orders, a state court may not modify an order of child support rendered by a court of continuing jurisdiction in another state unless the parties, including the child, no longer reside in that state or the parties expressly agree to permit another state to exercise jurisdiction. A court order that fails to adhere to this jurisdictional rule does not qualify for enforcement under the Full Faith and Credit Clause of the U.S. Constitution. 28 U.S.C. § 1738B(a) (Full Faith and Credit for Child Support Orders Act); UIFSA § 205.

Answer 220

As with enforcement, a child-support order may be registered in another tribunal (e.g., order entered in Mississippi, but all parties moved to Minnesota and the order is then registered in the second state). It is important to note, however, that if an aspect of a child-support obligation may not be modified under the law of the state that first imposed the obligation, that aspect of the obligation may not be modified under the laws of any other state. UIFSA § 611, cmt. See also, C.K. v. J.M.S., 931 So. 2d 724 (Ala. Civ. App. 2005) (while the amount of child support may be modified, the length of the obligation may not be changed, as it is a nonmodifiable aspect of the original order); Wills v. Wills, 745 N.W.2d 924, 926–29 (Neb. Ct. App. 2008).

Answer 221

4. Enforcement of Awards Both child- and spousal-support orders are enforced through civil contempt orders, income withholding, withholding of tax refunds, and other means. Child-support-hearing officers hear proceedings for the establishment, enforcement, or modification of child support. Typically, the hearing officers are members of the Florida bar who may (i) hold a hearing, including the taking of testimony and establishment of a record, (ii) notify parties of that hearing and establish the date, (iii) evaluate evidence and make recommendations, including findings of fact, and (iv) take voluntary acknowledgments of paternity or support. Fla. Fam. L. R. P. 12.491(e).

Answer 222

In Florida, all alimony and support payments are ordered to be made into a central depository, which charges a handling fee not to exceed three percent of the payment obligation, unless the parties have no minor children or agree to the contrary. The central depository will forward the funds to the State Disbursement Unit for distribution and handling. If payments are not through a central depository and there is an arrearage on the account, then either party may petition to enter the program by filing a sworn affidavit of arrears with the court, the depository, and the other party. The petition will be routinely granted.

Answer 223

Florida has a state case registry for all information relating to child support and paternity. All parties have an ongoing obligation to update their address and employment information with the registry. Fla. Stat. §§ 61.046(13), 61.13(7)(a).

Answer 224

a. Income withholding Once a party has defaulted on an alimony or child-support obligation, an income-withholding or wage-garnishment order will be forwarded to the obligor’s employer, which must deduct the ordered amount from the obligor’s earned income and forward it to the central depository. Wages, bonuses, dividends, and retirement funds may all be garnished to satisfy the order. The obligor must be notified prior to the commencement of the wage-execution order and be given a period of 15 days to satisfy the arrears before the order is implemented. Fla. Stat. § 61.1301. The obligor may request a hearing to contest the order, within 15 days, but may only contest mistakes of fact, such as the amount owed. Once the order is binding, which occurs two weeks after service, the employer must deduct the amount until a written release is issued or it will become liable for the amount. Retaliation against the employee for the income-withholding order is prohibited. If a modification of the order is sought, the garnishment is stayed until a hearing is held. Continuing writs of garnishment, which are typically prohibited in Florida, may be used to enforce an alimony or child-support order. Fla. Stat. § 61.12.

Answer 225

b. Civil contempt Civil contempt requires compliance with a court order. An obligor with the ability to pay may be found in civil contempt for failure to pay alimony, attorney’s fees, or child support and can be either fined or sent to jail and held until the amount owed is fully paid. The burden is on the obligor to prove that he is unable to pay the obligation. If he meets this burden, there can be no incarceration, but the court may order other remedies, such as wage garnishment. Notice to the obligor and an opportunity to be heard are required. In Florida, any person who has been found to be in contempt for failure to meet his obligations under a support order in the past, and who willfully fails to provide alimony or child support as ordered despite his ability to do so, commits a first-degree misdemeanor.

Answer 226

c. Criminal contempt Criminal contempt is a specific jail sentence imposed upon an obligor who willingly fails to pay the amount owed. The willfulness of the obligor must be established beyond a reasonable doubt. When criminal contempt is sought by the court, the defendant is entitled to additional constitutional protections. Hicks v. Feiock, 485 U.S. 624 (1988) (violative of the Fourteenth Amendment Due Process Clause to place the burden of proving an inability to make support payments on the defendant).

Answer 227

d. Child Support Recovery Act Under the Child Support Recovery Act (“CSRA”), it is a federal criminal offense to willingly fail to pay child support to a child residing in another state if the amount has been unpaid for a period of more than one year or if the amount owed exceeds $5,000. 18 U.S.C. § 228.

Answer 228

e. Other sanctions Courts may impose other sanctions, such as issuing judgments, intercepting tax refunds, credit-bureau reporting, suspending the obligor’s driver’s license or occupational license, mandating a court-ordered job search, ordering participation in job training, seizing property or assets, ordering the procurement of insurance or a bond to cover the obligation, and ordering the payment of attorney’s fees. Additionally, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (“PRWORA”) permits the denial of a passport application when the noncustodial parent is more than $5,000 in arrears on his child-support obligation. PRWORA §312. Also, the court may order the obligor to purchase or maintain a life insurance policy or a bond, or to otherwise secure the child support award with any other assets. Fla. Stat. § 61.13(1)(c).

Answer 229

f. Enforcement in other jurisdictions Every jurisdiction, including Florida, has adopted the Uniform Interstate Family Support Act (“UIFSA”) to simplify collection of support payments when the obligor or child resides in a jurisdiction different from the one in which the original order was issued. Once an order is registered in another state, it is enforceable in the same manner and to the same extent as a child-support order issued by that state. UIFSA § 603(b). If the order is properly registered, the Full Faith and Credit Clause of the United States Constitution applies to the order. UIFSA § 603(b). If there is no personal jurisdiction over the obligor, a two-state procedure can be employed. Under this approach, an enforcement order can be obtained in the issuing state by filing an enforcement petition in the initiating state that will be forwarded to the issuing state’s court. UIFSA § 203.

Answer 230

5. Full Faith and Credit for Child Support Orders Act (“FFCCSOA”) The Full Faith and Credit for Child Support Orders Act (“FFCCSOA”) provides that full faith and credit must be given to another court’s order for child support if the court had subject-matter and personal jurisdiction over the parties, and the parties had reasonable notice and an opportunity to be heard. The court that enters the original order has exclusive continuing jurisdiction to modify the order if one of the parties or the child continues to reside in the state or, if no one continues to reside in the state, the parties consent in court or in a record that the court can continue to exercise jurisdiction. 28 U.S.C. § 1738B. Each state is responsible for enforcing the terms of an order entered in another jurisdiction and may not modify the order unless the state seeking to modify has jurisdiction to enter an order, and the original court no longer has exclusive continuing jurisdiction either because (i) the child no longer resides in the state, or (ii) none of the contestants reside in the state. Unlike with the UIFSA, the FFCCSOA applies only to child support.

Answer 231

Voluntary Termination of a Natural Parent's Rights 1. Parental Consent The biological parents may voluntarily give up their rights as parents of the minor child and consent to the child’s adoption by the adoptive parents. When the parent of the child is a minor, she may lawfully issue her consent to the adoption so long as the parent is over the age of 14. If the parent is under the age of 14, the consent must be witnessed by her parent or guardian. The consent is not revocable upon the parent reaching the age of majority or emancipation.

Answer 232

a. Consent of “fathers” Unlike discerning the identity of a minor’s biological mother, it may be difficult to discern the identity of a minor’s biological father. As a result, Florida has established additional requirements regarding the consent of a biological father to adoption. In Florida, a man will be considered the father of a child requiring his consent for adoption when: i) He is married to the biological mother of the child at the time of conception; ii) An affidavit of paternity is filed or he is listed on the child’s birth certificate before the date a petition for termination of parental rights is filed; iii) Acknowledgment of paternity is filed within the requisite timeframe; iv) He previously adopted the minor child; or v) The court has determined the man to be the child’s natural father prior to the date a petition for termination was filed.

Answer 233

Fla. Stat. § 63.062(1)(b). If a man is determined to be the father of a child based on the marital presumption, i.e., he is married to the biological mother at the time of conception or birth, and another man claims to be the biological father of the child, and that second man provides or attempts to provide child support in a consistent or repetitive fashion, the consent of the alleged second father is also required under Florida law.

Answer 234

b. Consent by failure to register Some jurisdictions, including Florida, have created adoption registries by statute for the purpose of determining the identity and location of putative fathers and to provide notice in the event of an adoption. A putative father’s failure to register within a statutory prescribed period will waive his right to notice of the adoption and irrevocably implies his consent. Termination in this fashion typically applies only to cases in which the father and the child never developed a relationship. In Florida, the claim of paternity may be filed prior to the birth of the child, but it must be filed not later than the date a petition is filed to terminate parental rights. By filing the paternity claim, the putative father consents to submit to and pay for DNA testing. Notice of the putative registry and the mandatory registration procedures is presumed. The rights of an unwed father to object to an adoption may be denied when the father does not demonstrate a commitment to the responsibilities of parenthood, but it may not be denied when such a commitment has been made. Caban v. Mohammed, 441 U.S. 380 (1979); Quilloin v. Walcott, 434 U.S. 246 (1978).

Answer 235

1) Notice While filing with the putative registry preserves the putative father’s right to notice and to consent to adoption, an alleged father may also be identified by the biological mother of the child. If the adoption agency receives information regarding a minor child’s alleged father, who is known and locatable, then the adoption agency must serve the alleged father with notice of the intended adoption plan and instructions on submitting a claim-of-paternity form. The claim of paternity must be filed within 30 days of receipt of notice of the intended adoption plan or it will be waived.

Answer 236

If no alleged biological father is identified by the mother to the adoption entity by the date that the mother provides her consent to the adoption, then the father will not be permitted to use the defense that he did not receive actual notice of the termination of his parental rights and adoption. The notice requirements are waived when the father has executed his consent to the adoption or an affidavit of nonpaternity. Fla. Stat. § 63.088.

Answer 237

2) Waived notice When the alleged father’s identification is provided by the mother to the adoption agency prior to the date of the consent for adoption, the statutory periods for filing the putative registry are waived. Additionally, the statutory period will be waived when the alleged father is served with the intended adoption plan by the adoption agency, and the 30-day period to respond to the notice is later than the date that the petition for the termination of parental rights is filed by the court.

Answer 238

c. Modified consent requirements for unmarried fathers Florida has modified the consent requirements of natural fathers in certain circumstances involving a nonmarital child. Consent of the natural father is not required when he has previously executed an instrument denying paternity or has surrendered his parental rights.

Answer 239

1) Child more than six months of age If the child is more than six months old, consent is required only when the natural father has maintained substantial and continuous or repeated contact with the child as manifested by the payment of reasonable and regular support and visitation on a monthly basis (at minimum), unless he is financially or physically unable to do so. If the father is financially or physically unable to maintain these requirements, he must regularly communicate with the child or agency providing care. A father who has openly lived with the child for six months of the year preceding placement will satisfy the criteria.

Answer 240

If the unmarried biological father expresses an interest and desire in assuming parental responsibilities for the child, but he failed to act in accordance with this intent, such as by failing to pay support or participate in visitation, then the court may find that the unmarried biological father has failed to comply with the statutory requirements.

Answer 241

2) Child less than six months of age When the child is less than six months of age, consent is required only when the natural father has demonstrated a full commitment to the child by complying with all of the following requirements: i) Filing with the putative father registry; ii) After receiving notice of the intended adoption plan, executing and filing an affidavit establishing his willingness and ability to take responsibility for the child, setting forth his plan to care for the child, and agreeing to an order for future support and a contribution to the already incurred expenses associated with the pregnancy and birth of the child in accordance with his ability to pay; and iii) Paying a fair and reasonable amount of expenses associated with the pregnancy and the birth of the child, if he was aware of the pregnancy, in accordance with his financial ability, unless the contribution was thwarted by the biological mother or person assuming custody of the child.

Answer 242

The unmarried biological father who does not comply with each of the above conditions is deemed to have waived and surrendered his rights in relation to the child, including his right to notice of any judicial proceeding in connection with the adoption, and his consent is not required.

Answer 243

An adoption entity shall serve a notice of the intended adoption plan upon any known and locatable unmarried biological father who is identified to the adoption entity by the mother by the date she signs her consent for adoption. Fla. Stat. § 63.062.

Answer 244

All of the notice and consent requirements are inapplicable when the child was conceived as a result of a crime, such as rape, sexual battery, incest, or unlawful sexual activity with a minor.

Answer 245

2. Abandonment The abandonment of a child will obviate the requirement for parental consent. In re Adoption of Doe, 543 So. 2d 741 (Fla. 1989), cert. denied, 493 U.S. 964 (1989). A child is deemed abandoned when the parent or legal custodian of the child, while being able, makes no provision for the child’s support and fails to establish or maintain a substantial and positive relationship with the child. The conduct that constitutes abandonment may occur during pregnancy or may be a result of incarceration.

Answer 246

An incarcerated parent will be found to have abandoned his child if: i) The court determines, by clear and convincing evidence, that continuing the parental relationship would be a detriment or harmful to the minor child and that termination is in the child’s best interests; ii) The time for which the parent will be incarcerated will constitute a significant portion of the child’s years of minority; iii) The incarcerated parent has been convicted of child abuse, first- or second-degree murder, or a sexual battery that constitutes a capital, life, or first-degree felony; or iv) The court has determined the incarcerated parent to be a habitual violent offender, sexual predator, or violent career criminal. W.T.J. v. E.W.R., 721 So. 2d 723 (Fla. 1998) (holding that the biological father’s commission of a violent offense against the mother, while she was knowingly pregnant, that results in a prison sentence that will confine the father for the majority of the child’s years of minority supports a finding of abandonment). (See also § VI.A.3.f.4)a), infra.)

Answer 247

3. Additional Consent In Florida, a minor who is 12 years old or older must consent to the adoption. In addition to the consent of the biological parents and the minor child, if applicable, the court must consent to the adoption if the person who has physical custody of the minor does not have the authority to consent to the petition. Additionally, any person who may be lawfully entitled to custody of the child must provide his consent. When the parental rights of the parents have already been terminated, the adoption agency may consent to the petition for adoption, and no additional consents will be required. If the agency unreasonably refuses to provide its consent, the court may waive the consent requirement for the agency when the petitioner has received a favorable preliminary adoptive home study by a licensed agency. Fla. Stat. § 63.062.

Answer 248

4. Execution All consents, including the affidavit of nonpaternity, must be notarized and executed in the presence of two witnesses, except when they are executed in the presence of the court. The notary public must not act as one of the witnesses and must note the date and time that the document was executed.

Answer 249

a. Timing A biological mother may execute her consent to adoption no earlier than 48 hours after the child’s birth or the day that the mother is notified in writing that she is fit to be released by the hospital, whichever is earlier. A biological father may execute his consent to adoption at any time after the birth of the child.

Answer 250

The consent will be immediately valid upon execution and may be withdrawn only if obtained by fraud or duress, except when the child is over the age of six months at the time of execution. If the minor child is more than six months old at the time of release and execution of the consent, then that consent is subject to a revocation period of three business days or until the child is placed with the prospective adoptive parents, whichever is later. If the person revoking the consent is the alleged father, who has not been established to be the father by marital presumption, testing, or court order, then the court may order a paternity test and reserve ruling on the revocation request until the results of the paternity test have been obtained. Fla. Stat. § 63.082.

Answer 251

b. Dependency case Upon execution of parental consent, the adoption entity may intervene in a dependency case and must provide the court with a copy of the preliminary home study of the prospective adoptive parents and any other evidence of the suitability of the placement. Upon a determination by the court that the prospective adoptive parents are properly qualified to adopt the minor child and that the adoption is in the best interests of the child, the court shall immediately order the transfer of custody of the minor child to the prospective adoptive parents, under the supervision of the adoption entity. The adoption entity is responsible for keeping the dependency court informed of the status of the adoption proceedings at least every 90 days from the date of the order changing placement of the child until the finalization of adoption. In all dependency proceedings, the court must advise the biological parent who is a party to the case of the right to participate in a private adoptive plan. Fla. Stat. § 63.082. (For a complete discussion of dependency cases, see § VI.A., infra.)

Answer 252

Involuntary Termination of Parental Rights Unlike with consensual termination of parental rights, only a court can involuntarily terminate one’s constitutional right to parent a child. The involuntary termination of parental rights typically occurs as a part of an abuse, neglect, or dependency case after the state has intervened and attempted to rectify the situation. In light of the constitutional implications involved in terminating rights, counsel must be provided to both the parents and the child at every stage of the proceeding. After the filing of a petition to involuntarily terminate rights, the court must hold an advisory hearing notifying the parties of their right to counsel. The advisory hearing must be held as soon as possible, but it must provide more than 24 hours’ notice to the parties in light of the constitutional rights involved. J.B. v. Dep’t of Children and Family Servs., 768 So. 2d 1060 (Fla. 2000). Grandparents have a right to notice of a petition for termination of parental rights pending adoption if the child has been living with the grandparent for 6 months of the 24-month period preceding the filing of the petition. Fla. Stat. § 63.0425.

Answer 253

1. Grounds Florida law provides that a court can seek termination of parental rights when: i) The child has been abandoned or the parent cannot be located within a period of 60 days despite a thorough inquiry; ii) The parent has engaged in egregious conduct that is a threat to the child’s (or the child’s sibling’s) life, safety, well-being, or physical, mental, or emotional health or has knowingly failed to prevent such conduct despite the opportunity and capability to do so; iii) The conduct of the parent has subjected the child or another child to sexual abuse, chronic abuse, or aggravated child abuse; iv) The parent’s conduct toward the child or other children demonstrates that the continued involvement of the parent in the child’s life threatens the child’s life, safety, well-being, or physical, mental, or emotional health regardless of whether services to assist the parent were provided; v) The parent will remain incarcerated for a substantial portion of the child’s minority, or the court has determined the parent is a habitual violent felony offender or sexual predator, or has been convicted in Florida or another state of murder or sexual battery, or it is in the best interests of the child for the parent’s rights to be terminated; vi) The parent’s rights to a sibling have previously been terminated involuntarily; vii) The parent has committed, attempted to commit, or aided and abetted in the murder or voluntary manslaughter of another child or of the other parent, or the felony battery of the child or another child resulting in serious bodily injury; viii) The child has been adjudicated dependent and continues to be abused, neglected, or abandoned, evidenced by the failure to comply with a case plan for a period of at least 12 months for other than financial reasons, or the parent has materially breached the case plan, making substantial compliance unlikely before the time for compliance expires, or the child has been in care for any 12 of the last 22 months and the parents have not substantially complied with a case plan; ix) The child, or another child of the parent, has been placed in an out-of-home case on three or more occasions, and the reasons for placement were caused by the parent; x) The child was exposed in utero to alcohol or a controlled substance and tests positive for that substance at birth, and the mother has at least one other child who has been adjudicated dependent after a finding of exposure to a controlled substance or alcohol; xi) A parental history of extensive, abusive, and chronic alcohol use or the use of controlled substances renders the parent unable to care for the child, and the parent has refused or failed to complete treatment during the three-year period immediately preceding the petition; xii) The court determines by clear and convincing evidence that the child was conceived as a result of an act of sexual battery. It is presumed that termination of parental rights is in the best interest of the child. The petition for termination may be filed at any time. A guilty plea or conviction of unlawful sexual battery is conclusive proof that the child was so conceived; or xiii) The parent is convicted of an offense requiring registration as a sexual predator.

Answer 254

Fla. Stat. § 39.806(1). Reasonable efforts to preserve and reunify families (e.g., providing a case plan) are not required if a court determines the grounds above, other than viii). Fla. Stat. § 39.806(2).

Answer 255

2. Standard for Termination Termination of parental rights must be in the best interests of the child. Fla. Stat. §§39.801–39.815. Specifically, the state must demonstrate that the reunification of the parents and child would pose a “substantial risk of significant harm” to the child, and show it made a good faith effort to rehabilitate the parent and reunite the family. Padgett v. Dep’t of Rehabilitative Servs., 577 So. 2d 565 (Fla. 1991). Because the termination of parental rights has constitutional implications, it is considered an extreme remedy. The DCF must prove that termination is the least restrictive means of protecting the child from serious harm. Statewide Guardian Ad Litem Program v. A.A., 171 So. 3d 174 (Fla. 2015). The standard for determining whether termination is appropriate is clear and convincing. Fla. Stat. § 39.811.

Answer 256

3. Surrender Often referred to as “surrender,” a parent may voluntarily terminate her parental rights during a dependency or involuntary termination proceeding. The surrender, which must be in writing and notarized, may be withdrawn only if obtained by fraud or duress. Fla. Stat. § 39.806(1)(a). If a parent surrenders her rights, the court has grounds to file a petition to terminate. An infant who tests positive for illegal drugs, narcotic prescription drugs, alcohol, or other substances, but shows no other signs of child abuse or neglect, shall be placed in the custody of a licensed child-placing agency. Fla. Stat. § 63.0423.

Answer 257

Commonly known as a safe haven law, Florida allows a mother or someone she designates to relinquish any infant who is seven days old or less to a manned fire station, or at an emergency medical center, or with an employee at a hospital, as long as there are staff available at the chosen drop off point. Fla. Stat. § 383.50.

Answer 258

Unless suspected of child abuse or neglect, a parent who leaves the infant has the absolute right to remain anonymous. If she does relinquish at any of these sites, employees, doctors, personnel are not allowed to ask the mother for any identifying information. When an infant is born in a hospital and the mother expresses intent to surrender custody of the infant to the hospital, upon the mother’s request, the hospital or registrar must complete the infant’s birth certificate without naming the mother. If the mother does relinquish an infant and there has not been any child abuse, the mother is immune from prosecution for abandonment. Fla. Stat. § 383.50(5), (9).

Answer 259

Although some critics of Florida’s Safe Haven law argue that it risks violating the due process rights of unidentified birth fathers who are unaware of the child’s birth and are not given notice that their parental rights may be terminated, under current Florida statute, an unmarried biological father is deemed to be on notice that a pregnancy and an adoption proceeding regarding that child may occur. Fla. Stat. § 63.088(1). This does not excuse the Department of Children and Families from the requirements of (i) properly inquiring whether a party with enforceable parental rights may exist and (ii) conducting a diligent search for such an identified parent if that potential parent’s location is unknown. See Fla. Stat. §§39.503, 39.803 (see § VI.A.3.c.2, Parent’s identity or whereabouts unknown, infra.). However, it is unlikely that an unknown birth father who could not be located by a diligent search may defend against the termination of his parental rights by claiming that he did not receive actual notice of the adoption proceeding. Fla. Stat. §§ 63.088(1); 63.062(3)(b).

Answer 260

A parent who leaves the newborn infant in accordance with the safe haven provision is presumed to consent to termination of her parental rights. Fla. Stat. §§ 63.0423(4), 383.50(2).

Answer 261

A parent may file a claim of parental rights of the surrendered infant any time before the court enters a judgment terminating the parental rights by making a claim to (i) the entity having custody of the infant or (ii) the circuit court before which proceedings relating to the newborn infant are pending. Fla. Stat. § 383.50(6). The court may then delay the action to terminate parental rights for up to 60 days to determine whether granting parental rights to the surrendering parent is in the best interests of the surrendered infant. Fla. Stat. § 63.0423(7). In making this determination, the court may not terminate parental rights solely on the basis that the parent initially surrendered the infant in accordance with the safe haven provision. Fla. Stat. § 63.0423(7)(c).

Answer 262

A petition for termination of parental rights may not be filed until 30 days after the date the infant was surrendered. A petition for termination of parental rights may not be granted until a parent has failed to reclaim or claim the infant within the time period (i.e. until the court enters a judgment terminating parental rights). Fla. Stat. § 383.50; § 63.0423(4).

Answer 263

5. Dismissal of Petition If the court does not find by clear and convincing evidence that parental rights should be terminated pending adoption, the court must dismiss the petition. The court must enter an order for the placement of the minor, but the court must not proceed to determine custody between competing eligible parties. The placement of the child should revert to the parent or guardian who had physical custody of the child at the time of the placement for adoption, unless the court determines that this placement is not in the best interests of the child. The court may not change placement of a child who has established a bonded relationship with the current caregiver without providing for a reasonable transition plan.

Answer 264

The court may order scientific testing to determining paternity only if the court determines that the consent of the father is necessary, unless all of the parties agree that such testing is in the best interests of the child. The court may not order scientific testing to determine paternity if the minor has a father whose rights have not been previously terminated. Fla. Stat. § 63.089.

Answer 265

6. Challenging an Order of Termination Any child, any parent or guardian ad litem of any child, or any other party to the proceeding who is affected by an order of the court may appeal the order terminating parental rights within 30 days. Fla. R. App. P. 9.146.

Answer 266

A judgment terminating parental rights pending adoption is voidable, as is a subsequent judgment of adoption, if the court finds that a person knowingly gave false information that prevented the parent from timely making known his or her desire to assume parental responsibilities toward the minor or from exercising his or her parental rights. The motion must be filed within a reasonable time but not later than 1 year after the entry of the judgment terminating parental rights. Fla. Stat. § 63.0423(9)(a).

Answer 267

After termination, the parents are not entitled to notice of any information relating to the children, including location of the children and pending adoption information. Fla. Stat. § 39.812.

Answer 268

RELATIONSHIP BETWEEN THE FAMILY AND THE STATE Dependency Cases 1. Overview Editor’s Note Except where noted otherwise, in this discussion of juvenile dependency cases, the term “parent” means parent, guardian, or other legal custodian.

Answer 269

Under the parens patriae doctrine, the state has responsibility for the welfare of children within the state. When the welfare of a child is in question, the state has the ability to intervene through a dependency case. Dependency proceedings in Florida usually begin when a child is sheltered (removed from her parents’ or legal guardians’ legal custody) because there is probable cause to believe the child is being abused, abandoned, or neglected. A trial is subsequently held to determine whether a preponderance of the evidence shows the child is dependent upon the state for care or custody.

Answer 270

If the child is adjudicated dependent, the parents enter into a case plan, which outlines certain tasks the parents must successfully complete in order for the child to return to or remain in their care and custody. When the parents substantially comply with the case plan, and if the child has safely remained in the custody of the parents for six months, the court may terminate supervision and terminate jurisdiction over the case. Alternatively, if the parents have not complied with the case plan, the court may permanently place the child in another person’s care (such as a permanent guardian, placement with a fit and willing relative, or another planned permanent living arrangement). The court may retain jurisdiction or supervision, depending on which permanency goal is selected.

Answer 271

2. Preliminary Dependency Proceedings Dependency proceedings generally begin when the Department of Children and Families (“DCF”) investigates a report of alleged abuse, abandonment, or neglect of a child.

Answer 272

a. Duty to report In general, any person who knows or has reasonable cause to suspect that a child has been abused, abandoned, or neglected by a parent, caregiver, or other adult, or that a child is in need of supervision and care and has no parent or responsible adult relative immediately known and available to provide supervision and care, is required to report this information to the DCF. Fla. Stat. § 39.201.

Answer 273

1) Immunity from liability A person who is under a duty to report child abuse, etc., and who makes such a report is immune from any criminal or civil liability. Urquhart v. Helmich, 947 So.2d 539 (Fla. 1st DCA 2006). A person who is not under a duty to report and who makes a report of child abuse in good faith is immune from any criminal or civil liability. Fla. Stat. § 39.203(1)(a).

Answer 274

2) Failure to report A person who knowingly and willfully fails to make a report of abuse, abandonment, or neglect, or who knowingly and willfully prevents another person from making a report, is guilty of a first-degree misdemeanor. Fla. Stat. § 39.205(1).

Answer 275

Unless domestic violence or other mitigating circumstances exist, an adult who lives with a child who is known or suspected to be a victim of child abuse or neglect and who knowingly and willfully fails to report the child’s mistreatment commits a third-degree felony. Fla. Stat. § 39.205(2).

Answer 276

b. Acceptance of report Abuse hotline personnel determine if the report meets the statutory definition of abuse, abandonment, or neglect. A report from a parent seeking assistance for conduct not meeting the definition may be accepted to prevent a future risk of harm to the child. Fla. Stat. § 39.201(2)(a). A report of abuse by an adult other than a parent or caregiver shall be made to the abuse hotline and thereafter will be transferred to the appropriate county sheriff’s office for investigation. Fla. Admin. Code r. 65C-29.002(5)(a)2; Fla. Stat. §39.201(2)(b). Acceptance of a report is not a determination of whether the allegations are true.

Answer 277

c. Investigation within 24 hours Once the report is accepted, the matter is transmitted to the appropriate protective investigations unit. Unless the report requires immediate action, the investigation must begin within 24 hours. Fla. Stat. §39.201(5).

Answer 278

1) Referral to child protection team Reports transmitted to the protective investigations unit must also be transmitted to the child protection team for review. A child protection team includes representatives from the school district and local health, mental health, social service, legal service, and law enforcement agencies. A medical professional on the team will review the abuse report and determine whether a face-to-face medical evaluation of the child is necessary. Such an evaluation is required in cases of: (i) injuries to the head, bruises to the neck or head, burns, or fractures in a child of any age, (ii) bruises anywhere on a child five years of age or under, (iii) any report alleging sexual abuse of a child, (iv) any sexually transmitted disease in a prepubescent child, (v) reported malnutrition of a child and failure of a child to thrive, (vi) reported medical neglect of a child, or (vii) symptoms of serious emotional problems in a child when abuse, abandonment, or neglect is suspected.

Answer 279

2) Referral to law enforcement The protective investigator must forward any allegations of criminal conduct to the local law enforcement agency.

Answer 280

3) Departmental investigation The DCF’s protective investigator gathers evidence relating to the abuse, abandonment, neglect, or risk to the child. This requires face-to-face interviews with the child and others in the household. If the protective investigator is denied reasonable access to the child by the parents or caregivers, the DCF must seek an appropriate court order before examining or interviewing the child. Fla. Stat. § 39.301(12). A parent’s attempt to prevent the investigator from interviewing or examining the child may form the basis for the investigator to take the child into protective custody.

Answer 281

4) Determination of need for services The investigator must determine whether the family needs services for the protection of the child and whether any services will safeguard the child in the home. Fla. Stat. § 39.301(9)(c). Services provided may include medical, health care, homemaker, day care, protective, or other services to stabilize the family.

Answer 282

If the investigator determines that the child needs protection through services, the investigator must offer services to the family on a voluntary basis unless there are high-risk factors, such as a parent’s young age or history of substance abuse or domestic violence, which may affect the ability of the parents to exercise good judgment. If the parents refuse voluntary services and the investigator believes the family needs services, the investigator must take the child into custody or file a dependency petition. Fla. Stat. § 39.301(14).

Answer 283

d. Removal A law enforcement officer or an authorized agent of the DCF may remove a child from her home based upon sworn testimony, either before or after a petition is filed, or if the officer or agent has probable cause that: i) The child has been abused, neglected, or abandoned, or is suffering from or is in imminent danger of illness or injury as a result of abuse, neglect, or abandonment; ii) The parent of the child has materially violated a condition of placement imposed by the court; or iii) The child has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care.

Answer 284

Fla. Stat. § 39.401(1). The DCF must immediately notify the parents that the child has been taken into custody. Fla. Stat. § 39.402(3).

Answer 285

A physician or other licensed health care professional or a person in charge of a hospital or similar institution may detain a child without parental consent if returning the child presents “an imminent danger to the child's life or physical or mental health,” even though additional medical treatment is not required. Fla. Stat. §39.395. The person detaining the child must immediately contact the DCF, and DCF must immediately begin a child protective investigation and make every reasonable effort to notify the parents that the child has been detained. To detain a child longer than 24 hours, the DCF must petition the court.

Answer 286

e. Shelter hearing In coordination with an investigator, the DCF’s attorney must determine whether there is probable cause to file a shelter petition. The child must be immediately returned to the custody of the parent if there is no probable cause. If there is probable cause and the child has not been returned to the custody of the parent, the DCF must file a shelter petition and schedule a shelter hearing, which must take place within 24 hours after the child’s removal. Fla. Stat. § 39.401.

Answer 287

1) Petition The shelter petition must identify both the child and the parents, describe the reasons the child should be placed in a shelter and the efforts that were made to prevent removal, and include a recommendation for the child’s placement. Fla. Stat. § 39.401(3); Fla. R. Juv. P. 8.305(a).

Answer 288

2) Notice The parents must be provided notice of the date, time, and location of the shelter hearing. Fla. Stat. § 39.402(5)(a). The failure to provide actual notice to the parents will not invalidate an order placing the child in a shelter if the court finds that the petitioner made a good-faith effort to provide notice. Fla. Stat. § 39.402(8)(b).

Answer 289

The parents must also be given written notice of their right to be heard and to present evidence at the shelter hearing, and of their right to be represented by counsel. The DCF must provide the parents with a statement of procedures involved in dependency cases. Fla. Stat. § 39.402.

Answer 290

3) Hearing procedure The court will conduct an informal hearing on the shelter petition in which it determines whether there is probable cause to believe that: i) The child has been abandoned, abused, or neglected or is in imminent danger of abandonment, abuse, or neglect; ii) The parent or legal custodian has violated a court-ordered placement condition; or iii) The child has no parent, legal custodian, or responsible adult relative to provide supervision and care.

Answer 291

In addition, the court must determine that removal of the child from the home was necessary and there are no appropriate or available services to allow the child to return home. Fla. Stat. § 39.402(1)-(2); Fla. R. Juv. P. 8.305(b)(2).

Answer 292

Unless it finds the appointment unnecessary, the court must appoint a guardian ad litem for the child, who will conduct an independent investigation, be present at all hearings, and make written recommendations to the court regarding the best interest of the child. Fla. Stat. § 39.822; Fla. R. Juv. P. 8.215(c).

Answer 293

4) Right to counsel The court must advise the parents of their right to counsel at the shelter hearing and at all dependency hearings, and of the rights of parents to court-appointed counsel if they are indigent. The court must determine whether the parents understand their right to counsel, and must appoint counsel for an indigent parent unless the parent waives the right to counsel. Fla. Stat. §§39.013(9), 39.402(8)(c)2; Fla. R. Juv. P. 8.305(b)(6),(7). The parents may make a knowing and intelligent waiver of their right to counsel. The court may not accept a waiver of counsel if it appears that the parent is unable to make an intelligent and understanding choice because of mental condition, age, education, experience, the nature or the complexity of the case, or other factors. Fla. Stat. § 39.013(9)(a).

Answer 294

5) Placement If the court grants the shelter petition, it may place the child in the custody of the DCF in a licensed shelter home or with an appropriate adult relative or non-relative. The court must ask the parents if there are any relatives of the child who can be considered for placement. A child may not be released from shelter care after a shelter order has been entered except on court order, unless the shelter order authorized the release. Fla. R. Juv. P. 8.305.

Answer 295

a) Visitation The court determines visitation rights unless there is a clear and convincing showing that visitation is not in the best interest of the child. Fla. Stat. § 39.402(9); Fla. R. Juv. P. 8.305(b)(8). There is a presumption in favor of denying or restricting visitation if a parent or caregiver (i) has been found by a court to be a sexual predator, (ii) has been found guilty of or entered a plea of guilty or no contest to certain criminal offenses, including sexual battery, lewd and lascivious behavior, indecent exposure, and incest, or (iii) with regard to whom a court has found probable cause that the parent or caregiver has sexually abused a child. The presumption may be rebutted only by clear and convincing evidence that the child’s safety, well-being, and physical, emotional, and mental health are not compromised or endangered by the visitation or contact.

Answer 296

b) Fees and child support The parents, unless financially unable, are required to pay fees established by the DCF to the institution that has custody of the child. Fla. Stat. § 39.402(11)(a). The parents must be afforded notice and an opportunity to be heard before entry of any support order. D.W. v. Dep’t. of Children & Families, 882 So. 2d 491 (Fla. Dist. Ct. App. 2004).

Answer 297

6) Shelter order The court’s order for placement of a child in shelter care must contain specified written findings, including that placement in shelter care is necessary and in the best interest of the child. Fla. Stat. § 39.402(8)(h); Fla. R. Juv. P. 8.305(c). The failure to make specific written findings will preclude permanent placement of the child. C.A. v. Department of Children & Families, 27 So. 3d 241 (Fla. Dist. App. 2010).

Answer 298

f. Injunction Any time after a protective investigation has been initiated, the court, on request of the DCF, law enforcement, the state attorney, another responsible person, or on its own motion, may, if there is reasonable cause, issue an injunction to prevent any act of child abuse. Fla. Stat. § 39.504(1). Reasonable cause exists if there is evidence of child abuse or if there is a reasonable likelihood of such abuse occurring based on a recent overt act or failure to act.

Answer 299

3. Dependency Proceedings Dependency hearings begin with a petition and can be divided into two distinct phases, adjudication and disposition.

Answer 300

a. Jurisdiction 1) Subject matter jurisdiction In Florida, subject matter jurisdiction over dependency proceedings is vested in the circuit courts. The court hearing the dependency matter may also exercise jurisdiction over guardianship and temporary custody proceedings involving the same child. Fla. Stat. § 39.013(3). If dependency issues arise in other types of cases, the court can transfer custody, visitation, and child support issues to the court that hears dependency cases. Fla. R. Juv. P. 8.205(a). A circuit court order in a dependency case governing custody and visitation takes precedence over parental responsibility and time-sharing orders regarding the same child in a dissolution of marriage or other custody proceeding. Fla. Stat. § 39.013(4). The court in a dependency proceeding, however, has no authority to determine a disputed issue of paternity. N.D. v. Dep’t. of Children & Family Services, 961 So. 2d 1027 (Fla. Dist. Ct. App. 2007).

Answer 301

2) Personal jurisdiction The circuit court has exclusive original jurisdiction over a child voluntarily placed with a licensed child-care agency, a licensed child-placing agency, or the DCF. Jurisdiction also attaches when a child is taken into custody by the DCF or when a shelter, dependency, or termination of parental rights petition is filed, whichever occurs first. Fla. Stat. § 39.013(2).

Answer 302

3) Transfer of jurisdiction Jurisdiction over a dependency case can be transferred within a circuit, between circuits, and between states, usually for reasons that deal with venue issues and the convenience of the respective forums.

Answer 303

4) Retention and termination of jurisdiction If a child has been adjudicated dependent, the court retains jurisdiction over the child until the child reaches the age of 18, the court terminates its own jurisdiction, or the child is subsequently adopted. Fla. Stat. §§ 39.013(2), 39.811(9). Marriage or emancipation of the child will also terminate the jurisdiction of the court. Any party may file a motion to terminate supervision by the DCF, the jurisdiction of the court, or both. Fla. R. Juv. P. 8.345(b). The court cannot terminate its jurisdiction unless the child is returned to the parents and has been in that placement for at least six months, the child is adopted, or the child reaches the age of 18.

Answer 304

b. Petition 1) Who may file A petition seeking adjudication that a child is dependent may be filed by an attorney for the DCF or any person with knowledge of the facts alleged or who has been informed of them and believes that they are true. Fla. Stat. §39.501(1).

Answer 305

2) Time limits The time for filing a petition depends on whether the child has been removed from the custodial home. If a child is removed from the home before the filing of a dependency petition, that child is in “shelter care” status, which expedites the proceedings. For a child placed in shelter care, a petition must be filed within 21 days after the shelter hearing. Fla. Stat. §39.501(4). Any party can further expedite the filing deadline by demanding an early filing, which requires the petition to be filed within seven days after the demand is made.

Answer 306

If a child is not in shelter care, a petition must be filed within a reasonable time after the child was referred to the DCF. Fla. Stat. § 39.501(4).

Answer 307

Once the dependency petition is filed, the child’s parent must be served with a copy at least 72 hours before the arraignment hearing.

Answer 308

3) Contents The petition must be in writing, identify all parents and legal custodians of the child, if known, and be signed by the petitioner under oath, affirming the petitioner’s good faith in filing the petition. Fla. Stat. § 39.501(3). A specific statement must be included in the petition regarding the acts or omissions leading to the child’s alleged dependency and the identity of the person alleged to have committed them. Fla. Stat. § 39.501(3)(c); Fla. R. Juv. P. 8.310(a)(1). Due process requires that the allegations be sufficient to inform the parent of the nature of the DCF’s claims so that the parent can prepare a defense. The court may require the petitioner to submit a more definite statement if necessary. Fla. R. Juv. P. 8.310(d).

Answer 309

4) Answer Although a written answer to the petition is permitted, none is required. Fla. Stat. § 39.505; Fla. R. Juv. P. 8.325(a). Any matter that might be included in an answer or other pleading may be pleaded orally before the court.

Answer 310

c. Notification of proceedings The following parties must be notified of all proceedings or hearings in a dependency matter: i) The parents (unless parental rights have been terminated) or the legal custodians of the child. The court can enter an adjudication of dependency even if service of process has not been perfected on the parents, if they cannot be located after a diligent search; ii) The DCF, when the child is placed in its custody, when protective supervision is ordered in a privately filed dependency action, or when the DCF itself files a petition for shelter, dependency, or termination of parental rights, whichever comes first; iii) The petitioner, on the filing of a petition for shelter, dependency, or termination of parental rights; iv) The guardian ad litem, on court appointment to the case; and v) The child. The child’s presence may be excused by the court if being present would not be in the child’s best interest. Notice to the child may be excused by the court when the age, capacity, or other condition of the child is such that notice would be meaningless or detrimental to the child.

Answer 311

Fla. Stat. §§ 39.502, 39.01(58); Fla. R. Juv. P. 8.210(a), 8.225(c)(3). Even when a parent has been dismissed from the dependency proceeding, the parent remains a party and is entitled to notice of the proceedings. C.L.R. v. Dep’t. of Children & Families, 913 So. 2d 764 (Fla. Dist. Ct. App. 2005).

Answer 312

1) Non-resident parents Parents residing out of state must be given notice of the proceedings at least 20 days before any hearing in Florida. Fla. R. Juv. P. 8.225(a)(4)(B).

Answer 313

2) Parent’s identity or whereabouts unknown If the identity or location of a parent is unknown and a petition for dependency, shelter, or termination of parental rights is filed, the court shall conduct an inquiry under oath to determine whether: i) The mother of the child was married at the probable time of conception of the child or at the time of birth of the child; ii) The mother was cohabiting with a male at the probable time of conception of the child; iii) The mother has received payments or promises of support with respect to the child or because of her pregnancy from a man who claims to be the father; iv) The mother has named any man as the father on the birth certificate of the child or in connection with applying for or receiving public assistance; v) Any man has acknowledged or claimed paternity of the child in a jurisdiction in which the mother resided at the time of or since conception of the child, or in which the child has resided or resides; vi) A man is named on the birth certificate of the child; or vii) A man has been determined by a court order or the Department of Revenue to be the father of the child.

Answer 314

Fla. Stat. §§39.503(1), 39.803(1). This inquiry will be conducted of the parent who is available, or, if no parent is available, of any relative, caregiver, or legal custodian of the child who is present at the hearing and likely to have the information. Fla. Stat. §§39.503(1), 39.803(1). The Department of Children and Families has the burden of establishing that this diligent search occurred. Dep't of Children & Families v. J.J.E., 953 So. 2d 659 (Fla. Dist. Ct. App. 2007). If this inquiry fails to identify any person as a parent or prospective parent, the court shall so find and may proceed without further notice. Fla. Stat. §§39.503(4), 39.803(4).

Answer 315

If the inquiry identifies a parent or prospective parent whose location is still unknown, the petitioner must conduct a diligent search for the parent, which must include inquiries of: (i) all known relatives of the parent or prospective parent, (ii) utility and postal providers, and (iii) law enforcement and other state and federal agencies likely to have information about the parent or prospective parent, as well as a thorough search of at least one electronic database specifically designed for locating persons. Fla. Stat. §§39.503(6), 39.803(6); Fla. R. Juv. P. 8.225(b)(1).

Answer 316

The petitioner must continue to search for the missing parent and must report those efforts to the court until either the parent is located or the court excuses the petitioner from further searching. Fla. Stat. § 39.502(8)-(9); Fla. R. Juv. P. 8.225(b). The court is also excused from this diligent search if it finds that the best interest of the child requires proceeding without notice to the person whose location is unknown. Fla. Stat. §§39.503(5), 39.803(5).

Answer 317

Once located, the prospective parent must be given notice of the proceedings and an opportunity to become a party by completing a sworn affidavit of parenthood. Fla. Stat. §§39.503(3), (8), 39.803(3), (8).

Answer 318

d. Right to counsel 1) Parents A parent must be informed of her statutory right to counsel at every stage of a dependency proceeding. Failure to advise a parent of the right to counsel can invalidate actions taken by the court. Even when a parent waives the right to counsel at one stage of the dependency proceeding, the court must still advise the parent of that right at each subsequent stage when the parent appears without counsel. Fla. Stat. § 39.013(9)(c); Fla. R. Juv. P. 8.320(b)(3). Furthermore, indigent parents have an absolute right to appointment of counsel free of charge in a dependency proceeding. Fla. Stat. §§39.013(9)(a), 39.402(5)(b)2; Fla. R. Juv. P. 8.320(a)(2).

Answer 319

2) Children Children in dependency proceedings have no constitutional right to representation by counsel. In the Interest of D.B., 385 So. 2d 83 (Fla. 1980). Children do have a statutory right, however, to the appointment of a guardian ad litem. Fla. Stat. § 39.402(8)(c)1.

Answer 320

e. Arraignment After the petition is filed, the court must conduct an arraignment hearing for the parents to admit, consent to, or deny the allegations in the petition. If the child is sheltered, the hearing must be held within 28 days of the shelter hearing or within seven days of filing the dependency petition, if a demand for earlier filing has been made. Fla. Stat. § 39.506(1). If the child is not sheltered, the hearing must be held within a reasonable time of filing. Fla. Stat. §39.506(2).

Answer 321

If the parent denies the petition at the arraignment, an adjudicatory hearing is held. If the parent or custodian instead admits to the allegations or consents to the petition for dependency, the court proceeds to a disposition hearing. The court also must review the necessity of the child’s placement in the shelter at the arraignment hearing. Fla. Stat. § 39.506(5), (8).

Answer 322

f. Adjudicatory hearing 1) Timing The adjudicatory hearing must be held within 30 days after the arraignment, and the order of adjudication must be entered within 60 days of placement in shelter, or the child must be released from shelter care. Fla. Stat. §39.402(13).

Answer 323

These time limitations do not include delays due to continuances permitted by statute, including continuances granted in the best interest of the child, because of unavailability of evidence (if the party seeking the continuance has exercised due diligence to obtain the evidence and there are substantial grounds to believe that the evidence will be available within 30 days), or to provide notice of the hearing to the parent. Fla. Stat. § 39.0136(2).

Answer 324

The total time allowed for continuances or extensions may not exceed 60 days within any 12-month period, except for extraordinary circumstances in which the continuance will preserve a party’s constitutional rights or protect the best interests of the child. Fla. Stat. § 39.0136(3).

Answer 325

2) Presence of parties All parties have the right to be present at the adjudicatory hearing. Fla. R. Juv. P. 8.330(c). The DCF must be represented by an attorney at the hearing. The child has a right to be present but is not required to be. Any party may request that the child be excluded from the proceedings if the child’s mental or physical condition or age is such that a court appearance is not in the best interest of the child. Fla. R. Juv. P. 8.255(a), (b); Fla. Stat. §39.01(58). No person other than the child may be excluded from any hearing unless the court determines that closing the hearing is in the public interest or the best interest of the child. Fla. Stat. § 39.507(2).

Answer 326

3) Procedure The adjudicatory hearing is conducted by the judge without a jury, generally applying the rules of evidence used in civil cases. Each party may call, examine, and cross-examine witnesses. Other than attorney-client and clergy communication privileges, evidentiary privileges are statutorily abrogated when one party to the communication is a perpetrator or alleged perpetrator in a dependency proceeding. Fla. Stat. § 39.204.

Answer 327

The grounds alleged in the petition for dependency must be established by a preponderance of the evidence. Fla. Stat. § 39.507(1)(b). Any evidence that was obtained as a result of an anonymous call to the DCF must be independently corroborated and is not, by itself, sufficient to support an adjudication of dependency. Fla. Stat. § 39.507(1)(b).

Answer 328

4) Finding of dependency A child is deemed dependent if the court finds by a preponderance of the evidence that the child: i) Has been abandoned, abused, or neglected by the child’s parents; ii) Has been surrendered to the DCF or a licensed child-placing agency for purpose of adoption; iii) Has been voluntarily placed with a licensed child-caring agency, a licensed child-placing agency, an adult relative, or the DCF, after which placement, a case plan has expired and the parent or parents or legal custodians have failed to substantially comply with the requirements of the plan; iv) Has been voluntarily placed with a licensed child-placing agency for the purposes of subsequent adoption, and a parent or parents have signed a consent pursuant to the Florida Rules of Juvenile Procedure; v) Has no parent or legal custodians capable of providing supervision and care; vi) Is at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians; or vii) Has been sexually exploited and has no parent, legal custodian, or responsible adult relative capable of providing supervision and care.

Answer 329

Fla. Stat. § 39.01(15). a) Abandonment A child is deemed abandoned when the parent, legal custodian or caregiver, while being able, makes no significant contribution to the child’s care and maintenance and/or fails to establish or maintain a substantial and positive relationship with the child. The incarceration of a parent or caregiver responsible for a child’s welfare may support a finding of abandonment. Fla. Stat. § 39.01(1). (See also § V.I.2., Abandonment, supra.)

Answer 330

b) Abuse A child is deemed abused when a willful or threatened act or omission of a parent results in physical, sexual, or mental abuse, injury, or harm to the child that causes or will likely cause significant impairment of the child’s physical, mental, or emotional health. Corporal discipline of a child by a parent for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child. Fla. Stat. § 39.01(2).

Answer 331

The evidence must demonstrate a nexus between the parent’s behavior and the injury or harm or risk of injury or harm to the child. J.B., III v. Dep’t. of Children & Families, 928 So. 2d 392 (Fla. Dist. Ct. App. 2006). If the adjudication of dependency is based on a finding of abuse not directly perpetrated by the parent, caregiver, or legal custodian, the court must find that it was a result of that person’s participation, consent, or neglect. A.B. v. Dep’t. of Children & Family Services, 901 So. 2d 324 (Fla. Dist. Ct. App. 2005).

Answer 332

Domestic violence may constitute abuse if it occurs in the presence of the child. In the Interest of K.B., 937 So. 2d 709 (Fla. Dist. Ct. App. 2006). There must be evidence that the child saw the violence or was aware of it.

Answer 333

Harm to a child’s health or welfare can occur when a person exposes a child to a controlled substance or alcohol. Exposure includes extensive, abusive, and chronic use by a parent that compromises, or is likely to compromise, the ability to supervise and care for the child. Fla. Stat. § 39.01(35)(g)(2).

Answer 334

c) Neglect A child is deemed neglected when: i) A parent deprives the child of the necessities required of life, despite the financial ability to provide them, or allows a child to live in an environment that significantly impairs or threatens to impair his physical, mental, or emotional health; or ii) A parent who is financially unable to provide the necessities of life is offered services to assist him and refuses them. A parent who does not have parental responsibility of a child may still be found guilty of neglect. Fla. Stat. § 39.01(50).

Answer 335

A court may not adjudicate a child dependent based upon medical neglect when the parent fails to provide medical services to a child based on religious belief. However, this exception does not preclude the court from ordering that medical services be provided to the child. Fla. Stat. §39.01(50).

Answer 336

5) Adjudication a) Dismissal of petition If the court finds at the close of all evidence and arguments that the child is not dependent or that the allegations have not been sustained, it must dismiss the case. Fla. Stat. §39.507(4); Fla. R. Juv. P. 8.330(f). If the child has been in shelter status, the child must be returned immediately to the parent from whom she was removed.

Answer 337

b) Withheld adjudication If the court finds that the child is dependent but that no action is necessary other than supervision in the child’s home, it may withhold adjudication and place the child and her family under the supervision of the DCF. If the court subsequently determines non-compliance with the order of supervision, it can enter an order of adjudication without further evidence of dependency. Fla. Stat. § 39.507(5).

Answer 338

c) Adjudication of dependency If the court finds the child dependent and does not withhold adjudication, the court must adjudicate the child dependent and enter an order of adjudication. Fla. Stat. § 39.507(6); Fla. R. Juv. P. 8.332(a). The court then has full authority to proceed with the disposition stage of the dependency proceedings.

Answer 339

The order of adjudication must be in writing, state the legal basis for a finding of dependency, and give the facts on which the finding is based. Fla. Stat. § 39.507(6); Fla. R. Juv. P. 8.332(a). A parent’s consent or stipulation to a finding of dependency does not relieve the court of the requirement to make specific findings of fact in the order. Dep’t. of Children & Families v. P.C., 912 So. 2d 1255 (Fla. Dist. Ct. App. 2005).

Answer 340

g. Disposition hearing A disposition hearing follows the adjudication of dependency. At the disposition hearing, the court receives a case plan, pre-disposition study, and other evidence relating to the situation of the family and the placement of the child. The court then enters an order determining where the child will live, what the parents must do to correct the conditions creating the dependency, and the responsibility of the other parties for ensuring the child’s safety and assisting the parents in their efforts. Fla. Stat. § 39.521(1).

Answer 341

1) Timing Timing of the disposition hearing depends on the plea entered. If the parents enter a consent or admission to the petition for dependency, the disposition hearing must be scheduled within 15 days of arraignment. Fla. Stat. §39.506(5). If a parent denies the allegations of the petition for dependency and the court adjudicates the child dependent, the disposition hearing must be conducted within 30 days of the last day of the adjudicatory hearing. Fla. Stat. § 39.507(8).

Answer 342

2) Notice Written notice of the disposition hearing must be given to all parties and any relatives who are providing out-of-home care for the child at the end of the adjudicatory hearing. Fla. Stat. § 39.507(8); Fla. R. Juv. P. 8.255(h).

Answer 343

3) Right to counsel The court must advise the parents of their right to counsel, even if they have previously waived counsel at an earlier stage in the proceedings. Fla. Stat. §39.013(9); Fla. R. Juv. P. 8.320(a)(1), (b)(3). The DCF must be represented by counsel at the hearing. Fla. R. Juv. P. 8.255(a).

Answer 344

4) Pre-disposition study The DCF must file a pre-disposition study with the court, which must include documented information regarding the parents’ capacity and intention to provide for the child’s necessities of life, criminal records, mental and physical health, and suitability for placement of the child. The study must also document information about the child, including the length of time in an appropriate placement and the desirability of maintaining continuity, the child’s home, school, and community record, and the child’s preference for placement, if the court finds the child competent to express a preference. The study must include recommendations from the Child Protection Team and professionals or agencies providing evaluations or services to the parents and child. It must document the results of any prevention and reunification services being used, and must recommend placement for the child and provide detail as to what is and is not being recommended. Fla. Stat. § 39.521(2).

Answer 345

The court may not conduct the disposition hearing without the study, unless the court orders an exception to this requirement through a finding that all information required of a pre-disposition study is available in other documents filed with the court. Fla. Stat. § 39.521(1)(a).

Answer 346

5) Development of case plan a) Timing At least three business days before the disposition hearing, a case plan must be filed with the court and a copy served on all parties, including the child. Fla. Stat. § 39.521(1)(a); Fla. R. Juv. P. 8.400(d)(8). If the child has been removed from the home, a case plan must be prepared within 60 days of removal. Fla. Stat. § 39.6011(6)(b)2; Fla. R. Juv. P. 8.400(d)(6).

Answer 347

b) Contents The case plan lists the tasks to be performed by the parents and the services to be implemented to provide the child with a safe, permanent home. Fla. Stat. § 39.6012. It is developed by the DCF in a conference with the child’s parent, the guardian ad litem, if appointed, the temporary custodian of the child, and, if appropriate, the child. Fla. Stat. §39.6011(1)(a); Fla. R. Juv. P. 8.400(a).

Answer 348

The plan should describe the services to be provided either to improve conditions in the child’s home, assist in maintaining the child in the home, facilitate the return of the child to the parent’s home, ensure proper care of the child, or facilitate permanent placement of the child in a home other than that of the parents. The services must be the least intrusive possible, focus on defined objectives, and provide the most efficient path to reuniting the child and parents or providing permanency for the child. Fla. Stat. §39.6012(1).

Answer 349

c) Lack of parental participation If the parents are unwilling or unable to participate in preparation of the case plan, the DCF must prepare a case plan that includes a description of the reasons the parents did not participate and the DCF’s efforts to involve them. Fla. Stat. § 39.6011(1)(c); Fla. R. Juv. P. 8.400(d)(2).

Answer 350

d) Signature of all parties The case plan must be signed by all parties. Fla. Stat. § 39.6011(3); Fla. R. Juv. P. 8.400(e). The failure or refusal of a parent to sign the case plan does not affect its validity once accepted by the court.

Answer 351

6) Approval of case plan At the disposition hearing, the court reviews the case plan to determine whether it meets the statutory requirements and addresses in a meaningful manner the facts and circumstances on which the court based its finding of dependency or that led to the child’s placement outside the home. Fla. Stat. § 39.603(1); Fla. R. Juv. P. 8.410(b). If the court determines that the above criteria are not met, the parties must submit an amended plan within 30 days. Fla. Stat. § 39.603(2).

Answer 352

If the parties do not agree on the terms of the case plan, the court must order the conditions and tasks it deems necessary for permanency for the child. The court may also order the DCF to provide necessary services to achieve the goals of the case plan. Fla. R. Juv. P. 8.410(c).

Answer 353

7) Placement alternatives Once the court has adjudicated a child dependent, the court has broad discretion to place the child in the best placement for the child’s welfare.

Answer 354

a) Custodial parent’s home If the child can safely remain in the home of the custodial parent, the child may be placed under the protective supervision of the DCF in that parent’s home. Fla. Stat. § 39.521(3)(a).

Answer 355

b) Non-custodial parent’s home If the court finds that the child must be removed from the parent who had custody when the dependency arose, the court may place the child with another parent unless the court finds that the placement would endanger the safety, well-being, or health of the child. Fla. Stat. §39.521(3)(b).

Answer 356

The court may award this parent sole custodial responsibility for the child and provide for reasonable visitation by the parent from whom the child was removed. Alternatively, the court can grant temporary custody to the parent with a goal of reuniting the child and the previous custodial parent, should that parent substantially comply with the case plan. Fla. Stat. §39.521(3)(b)2.

Answer 357

c) Relative or other court-approved adult If the court finds that the child cannot remain safely with either parent, the child may be placed in the temporary custody of an adult relative or other court-approved adult. Fla. Stat. § 39.521(3)(c). A grandparent or other relative, however, has no enforceable right to custody if the child is removed from the custody of the parents. C.M. v. Dep’t. of Children & Families, 953 So. 2d 547 (Fla. Dist. Ct. App. 2007).

Answer 358

d) Court-ordered foster care The court can also order the child to be placed in foster care, which commits temporary legal custody to the DCF. Fla. Stat. § 39.521(3)(d). Foster care can include placement with a foster family or in a boarding home, group home, childcare institution, or some combination. Fla. Stat. § 39.01(30).

Answer 359

8) Disposition order Following the disposition hearing, the court enters a written order of disposition that must include: (i) decisions regarding the placement or custody of the child, (ii) special conditions regarding placement or visitation, (iii) required evaluation, counseling, or treatment activities by the parties, (iv) special requirements to protect the health, safety, and well-being of the child, to preserve the stability of the child’s educational placement, and to promote family preservation or reunification, as appropriate, (v) the designation of the person or agency responsible for supervising the provision of services to the child and family, (vi) a continuation or discharge of the guardian ad litem, and (vii) the date, time, and location for the next judicial review hearing. Fla. Stat. § 39.521(1)(d).

Answer 360

If the child is placed with an adult relative or other court-approved adult, a licensed child-care agency, or the DCF, the order must contain a requirement that the parents pay child support. If the child is allowed to remain in or return home, the order must contain a finding that the child’s safety and health will not be endangered and state the facts supporting such a finding. If the child is being placed outside the home, the order must include a finding that the child cannot safely remain or be returned home and that removal is necessary to protect the child. If the child is not being placed in the custody of an adult relative, legal custodian, or other custodian approved by the court, the order must state reasons for this placement and whether the DCF made appropriate efforts to locate a relative or custodian. Fla. Stat. § 39.521(1); Fla. R. Juv. P. 8.340(c).

Answer 361

h. Post-disposition proceedings The goal of post-disposition proceedings is permanency for the child.

Answer 362

1) Judicial review hearings Judicial review hearings are required for all children under court jurisdiction. Fla. Stat. § 39.701; Fla. R. Juv. P. 8.415(a).

Answer 363

a) Timing The initial judicial review hearing must be held within 90 days after the date of the disposition hearing or the date of the hearing at which the court approves the case plan, (whichever comes first, but no more than six months after the removal of the child). Fla. Stat. §§ 39.521(1)(c), 39.701(3)(a); Fla. R. Juv. P. 8.415(b)(1). Subsequent judicial review hearings occur at least every six months until permanency is achieved for the child. Fla. Stat. § 39.701(1)(a); Fla. R. Juv. P. 8.415(b)(2). A permanency hearing must occur no later than 12 months after the date the child is removed. Fla. Stat. § 39.621(1).

Answer 364

b) Report Before the judicial review hearing, the DCF must conduct an investigation and prepare a report regarding the child’s current placement, efforts of the parties to comply with the case plan, information on the results of any parent-child visitation, information on the child’s health and well-being, and a request for either a continuation of the case plan, a change in the child’s placement, or the initiation of termination of parental rights proceedings. Fla. Stat. § 39.701(8)(a); Fla. R. Juv. P. 8.415(c).

Answer 365

c) Citizen review panels To assist the court in reviewing dependency cases, each circuit may establish citizen review panels, each comprised of five trained volunteers, to conduct review hearings. Fla. Stat. § 39.702. The panel must report to the court and propose a recommended order from among the options available to the court in a judicial review hearing. Fla. Stat. § 39.701(2)(c). The court acts on the recommendations of the citizen review panel and enters a judicial review order. Fla. Stat. § 39.702(4).

Answer 366

d) Hearing The court or a citizen review panel can consider any relevant and material evidence, even if such evidence would not be admissible at an adjudicatory hearing. Foster parents, pre-adoptive parents, or legal custodians must also be given an opportunity to address the court. Fla. Stat. § 39.701(9); Fla. R. Juv. P. 8.415(e). If the hearing is for a 17-year-old child, the child must be given an opportunity to address the court. Fla. Stat. § 39.701(7)(a).

Answer 367

In conducting the judicial review hearing, the court or a citizen review panel must determine the following: i) Whether the parents were advised of their right to assistance in the preparation of the case plan and their right to counsel; ii) Whether a guardian ad litem should be appointed or, if already appointed, if the appointment should continue; iii) Who has the right to make educational decisions for the child; iv) The compliance or lack of compliance of all parties with respect to: a) Their obligations under the case plan; b) Their visitation rights and obligations; c) Any financial obligations pertaining to the care of the child; v) Whether the child is receiving safe and proper care, including, but not limited to, the proximity of the child’s placement to the parents’ home, whether it is a family-like setting similar to the child’s home, and the stability of the child’s educational placement; vi) A likely date for the child’s return home or other permanent placement; vii) If appropriate, the basis for the unwillingness or inability of a parent to become a party to a case plan, as well as the efforts to secure the parent’s participation; and viii) For a child between 13 and 18, the adequacy of the preparation being made for independent living.

Answer 368

Fla. Stat. § 39.701(9). e) Case plan review At the judicial review hearing, the court or citizen review panel will review the compliance of all parties with the case plan. A child in foster care should be returned to her natural parents if the court determines that the parents have substantially complied with the terms of the case plan and that reunification will not be detrimental to the child’s safety and well-being. Fla. Stat. § 39.701(10)(b). The parents’ failure to substantially comply with the plan can lead to the filing of a petition for termination of parental rights. A parent’s failure to comply with a case plan for a period of 12 months will constitute evidence of continuing abuse, neglect, or abandonment unless the failure to substantially comply was due to the parent’s lack of financial resources or to the failure of the DCF to make reasonable efforts to reunify the parent and child.

Answer 369

f) Petition to terminate parental rights Unless the child is being cared for by a relative or the DCF has documented a compelling reason that termination of parental rights is not in the best interests of the child, if the child is not returned to the parents following the 12-month judicial review hearing, the DCF must commence proceedings to terminate parental rights. Fla. Stat. §39.8055(1)(a). The DCF may initiate proceedings to terminate parental rights before expiration of the 12-month period if it determines that the parents have materially breached the case plan. Fla. Stat. § 39.806(1)(e)2.

Answer 370

2) Post-disposition change of placement Any interested person may petition the court to modify the conditions of supervision or the child’s placement. The standard for determining a change of custody for a child who has been adjudicated dependent is the best interest of the child. When applying this standard, the court must consider the continuity of the child’s placement in the same out-of-home residence as a factor when determining the best interest of the child. Fla. Stat. §39.522(1).

Answer 371

3) Permanency The ideal goals for permanency are reunification with the natural parents or adoption of the child. If a child cannot be returned to her parents, permanency options include adoption, guardianship, long-term relative custody, or placement in another planned permanent living arrangement. A permanency hearing must be held no later than 12 months after the date the child was removed from the home or no later than 30 days after the court determines that reasonable efforts to return the child to either parent are not required, whichever comes first. Fla. Stat. § 39.621(1).

Answer 372

a) Adoption If a child and parents will not be reunified, the court first considers adoption as a permanency option. Fla. Stat. § 39.621(6). To qualify for adoption, however, the parents’ rights must have been terminated. If the child is adopted, the court can terminate jurisdiction over the child. Fla. Stat. 39.812(4). See § VI.B, infra, for a discussion of adoption.

Answer 373

b) Guardianship If adoption is not in the best interest of the child, the court can consider permanent guardianship. Fla. Stat. § 39.621(2)(c). The court may place the child in a permanent guardianship with a relative or another adult if the child has been in the placement for not less than the preceding six months, the guardian is able to provide a safe and permanent home for the child, the guardian has made a commitment to provide for the child until the child reaches the age of majority, and the guardian agrees to give written notice of any change of his or her and the child's address. Fla. Stat. § 39.6221(1). The court must issue a written order with specific findings explaining why reunification with the natural parents is not possible.

Answer 374

c) Long-term placement with relative of child If neither reunification nor adoption is in the best interest of the child, the court may place the child with a fit and willing relative. Fla. Stat. §39.6231(1). The same requirements apply as with guardianship (see above). The DCF must continue to supervise the placement with the relative until further order and the court must review the placement at least once every six months. The court must continue to conduct permanency hearings to evaluate the possibility of adoption or permanent guardianship of the child. Fla. Stat. § 39.6231(7).

Answer 375

d) Another planned permanent living arrangement (APPLA) If reunification with the parents is not in the best interest of the child, the court may place the child in another planned permanent living arrangement (“APPLA”). Fla. Stat. § 39.6241(1). The court must find that the child’s health, safety, and well-being will not be jeopardized by the arrangement. The DCF must document the reasons why the placement will endure and how the proposed arrangement will be more stable and secure than ordinary foster care. There must be compelling reasons that such placement is the most appropriate permanency goal. Fla. Stat. §39.6241(1). The DCF must supervise the planned permanent living arrangement until the court orders otherwise, and the court must review the placement at least once every six months. Fla. Stat. § 39.6241(3). An example of a compelling reason for another planned permanent living arrangement is a 16-year-old foster child who chooses to remain in foster care with foster parents who are willing to care for the child until he reaches age 18.

Answer 376

Adoption For an adoption to be valid, the parental rights of the biological parents must first be terminated. For those rights to be terminated, there must be a voluntary or an involuntary termination of rights. When the rights are involuntarily terminated, it is normally a part of a child-abuse or dependency case, discussed at § V.N. Involuntary Termination, supra. With the exception of an adoption by a relative or stepparent, all adoptions of minor children require the use of an adoption entity. Fla. Stat. § 63.039(2). An adoption entity includes the DCF, a child-caring agency, an intermediary, a Florida child-placing agency, or an out-of-state child-placing agency.

Answer 377

A minor may not be placed in a prospective adoptive home until that home has received a favorable preliminary home study approved within one year before such placement in the prospective home. If a suitable prospective adoptive home is not available at the time the minor is surrendered to the adoption entity, the minor must be placed in a licensed foster care home, with a person or family that has received a favorable preliminary home study, or with a relative until a suitable prospective home is available. Fla. Stat. § 63.052.

Answer 378

1. Adoption Relationship Adoption is a statutory legal action in which the previous parent-child relationship is terminated and a new parent-child relationship is established. Fla. Stat. § 63.012–63.236. The purpose is to provide all children the benefits associated with a permanent family life. Once the adoption has been completed, within 30 days, a new birth certificate with the adoptive parents’ names is issued for the child. The records for most adoptions are sealed and kept confidential. Once an adoption has been completed, the child is deemed the adoptive child of the parents for all purposes, including inheritance, and receives all rights and privileges associated with that relationship as if the child was born to the adoptive parents.

Answer 379

2. Payment of Money Additionally, as with most states, Florida prohibits the payment of money from the adoptive parent to the natural parent other than costs related to the pregnancy. The natural parent may receive monies not to exceed $5,000, unless approved by the court, for living expenses and medical care during and for up to six weeks after the birth of the baby. The birth parent may also receive money to cover legal expenses related to the adoption. However, Florida, which permits private-placement adoptions, is among the minority of states that permits the use of a paid private intermediary, also known as a “baby broker,” in such adoptions. Fla. Stat. §63.032(10). Intermediaries, who include licensed doctors and attorneys and licensed out-of-state placement organizations, must obtain written acknowledgment from anyone required to consent to the adoption that his role is to represent the adoptive parents and that he is acting only as an intermediary to the natural parents. The failure of an intermediary to abide by the adoption statute is a third-degree felony. Prior to the adoption of a child through an intermediary, a preliminary study must be conducted by the DCF before the placement, except when the child is placed with a stepparent or relative. Payments to the intermediary are limited.

Answer 380

3. Persons Eligible to Adopt In Florida, the following classes of people may adopt a child or an adult, provided that their primary residence and place of employment is within the state: i) An unmarried adult; ii) Married couples adopting together; or iii) A married person, if the other spouse is the parent of the person to be adopted and consents to the adoption or if the failure of the other spouse to join in the adoption petition is excused by the court.

Answer 381

Fla. Stat. § 63.042. Florida no longer prohibits adoption by homosexual adults. Matter of Adoption of X.X.G. and N.R.G., 45 So. 3d 79 (Fla. Dist. Ct. App. 2010). A person who is disabled is not prohibited from adopting based on his physical disabilities or handicap, unless it is determined that the disability renders that person incapable of serving as an effective parent. Fla. Stat. §63.042(3), (4).

Answer 382

a. Adopting an adult As set forth above, Florida permits both children and adults to be adopted. While the procedure is similar for both types of adoptions, additional consent is required when the person to be adopted is an adult. Specifically, the adult to be adopted must consent, as well as the spouse of the adult to be adopted, if any. However, the consent requirement may be waived by the court when it is unreasonably withheld. The natural parents must also be notified, and ideally provide consent; however, notice of the procedure is sufficient in lieu of consent.

Answer 383

b. Equitable adoption Florida courts recognize the doctrine of equitable adoption (also known as virtual adoption). Only used in intestacy cases, equitable adoption is the legal process used to establish inheritance rights for a child when: i) The prospective adoptive parent had entered into an oral contract with the natural parent, expressing his desire and intention to adopt the child; ii) Pursuant to the contract, the child was placed in physical custody of the adoptive parent but was not formally adopted; and iii) The natural parents of the child acted in reliance on the agreement.

Answer 384

4. Hearing Voluntarily Terminating Rights As noted above, prior to the adoption proceeding, the parental rights of the biological parents must be terminated, thereby freeing the child for adoption. The determination of the court may not be challenged later by a person claiming to be a parent who did not establish his parental rights prior to the filing of the petition for termination. In Florida, these proceedings are heard by any court competent to decide child-welfare or custody matters. The same judge who presides over the termination proceeding also conducts the adoption proceedings, if she is still available. The petition to terminate rights shall be filed in the county where the child resides or where the adoption entity is located.

Answer 385

a. Grounds Parental rights may be terminated after a full evidentiary hearing and a determination by clear and convincing evidence that each person required to give consent: i) Has executed an affidavit of nonpaternity or executed a valid consent that has not been withdrawn; ii) Has been properly served with the notice of the intended adoption plan and failed to respond within the statutorily required period; iii) Has been properly served notice of the proceeding and has been determined to have abandoned the child, or failed to either file a written answer or personally appear at the hearing; iv) Is the parent of the minor child but has been declared incapacitated by the court, and the likelihood of regaining competency is medically improbable; v) Is the person having legal custody of the child, but is not the child’s natural parent, who has failed to respond in writing to the request for consent within the 60-day period or is unreasonably withholding consent; vi) Has been served notice of the proceeding and has responded in writing, but has been determined by the court to be unreasonably withholding consent; or vii) Is the spouse of the person to be adopted who has failed to consent and the failure has been excused by the court by reason of unexplained or prolonged absence, incapacity, or other circumstances that the court determines to be unreasonably withholding consent.

Answer 386

Fla. Stat. § 63.089. If the court determines that parental rights should not be terminated, the petition is dismissed with prejudice, and the natural parent retains full rights to the child.

Answer 387

b. Voiding an order of termination The order of the court terminating parental rights may be voided if, upon motion by the parent, it is determined that a person knowingly gave false information that prevented the parent from making his desire to assume the role and responsibilities of a parent known to the court or from meeting the requirements to exercise his parental rights. The motion must be made within a reasonable timeframe, not to exceed one year after the entry of the judgment terminating that parent’s rights. Voiding a termination of parental rights will also result in voiding any later judgment of adoption.

Answer 388

The judgment terminating parental rights may also be voided based on excusable neglect when the consent is based upon the natural parent’s failure to appear at the hearing and was entered as a default. The default may be vacated when the party (i) acts with due diligence, (ii) demonstrates excusable neglect, and (iii) demonstrates to the court that he has a meritorious defense to the petition to terminate. Dep’t of Children and Family Servs. v. P.E., 14 So. 3d 228 (Fla. 2009).

Answer 389

5. Petition for Adoption a. When to file a petition In Florida, a petition for adoption may not be filed for 60 days after the judgment terminating parental rights has been executed, except in cases of relative, stepparent, or adult adoptions, which do not require the proceeding to terminate parenting rights prior to the adoption. Fla. Stat. § 63.102.

Answer 390

b. Where to file a petition Petitions for adoption are filed in the county in which the child or the petitioner resides or in the county where the agency housing the child is located, unless the location of the filing would reveal the true identity of the child and an alternative location for filing would not impact any party’s substantive rights. If the petition is filed after an order of adjudication terminating parental rights, then it must be filed in the same court that entered the adjudication, unless a change of venue is granted. Fla. Stat. § 63.102.

Answer 391

c. Name of the child in a petition The child shall not be referenced by its former name in the petition and instead shall be referred to by the name that the child will use if the adoption is granted. Fla. Stat. § 63.112.

Answer 392

d. Conferences and hearings A case-management conference will be ordered by the court within 60 days of the date the petition is filed if there is (i) an issue with regard to obtaining the necessary consent or personal service, (ii) an objection to the adoption, or (iii) an objection to venue. Fla. Fam. L. R. P. 12.200(a)(2). Most adoption hearings may not be held until 90 days have elapsed after the filing of the petition, except for stepparent adoption hearings, which may be held immediately. In the 90-day period, the DCF must investigate the proposed adoption and submit a report; the petitioner and intermediary, if any, must file an accounting of all of the natural parent’s expenses associated with the birth.

Answer 393

6. Legal Effects of Adoption Once an adoption takes place, the adoptive parents have all of the rights and responsibilities that the biological parents would have had (e.g., support, custody, visitation, and inheritance), and the adopted child has all of the rights and responsibilities that a biological child would have had (e.g., intestate rights in the adoptive parents’ estate). As the adoptive parents stand in the shoes of the adoptee’s biological parents, in the vast majority of jurisdictions, including Florida, the birth parents do not have a right to visitation with the adopted child. Florida courts, however, may consider post-adoption communication and contact with non-adoptive siblings if it is determined to be in the best interests of the adoptive child. Fla. Stat. § 63.0427. Any awarded contact may be later rescinded if it is determined not to be in the adoptive child’s best interests. The court may not increase post-adoption communication without the consent of the adoptive parents. If the adoption is a stepparent adoption and grandparents have previously been awarded visitation, then the adoption of the child by the stepparent does not automatically terminate the grandparents’ visitation. The visitation will, however, be reviewed by the court, after notice to the grandparents and an opportunity to be heard, and a decision will be made about the grandparents’ visitation based on the child’s best interests. Fla. Stat. §752.07.

Answer 394

Generally, an adoption may not be dissolved. An action to vacate or otherwise nullify a judgment of adoption may not be filed more than one year after entry of the judgment. Fla. Stat. § 63.182.

Answer 395

7. Surrogacy Florida strictly prohibits contracts for the sale or transfer of any fetus, including one that has been identified but not yet conceived, and the parental rights associated with such a fetus. Fla. Stat. § 63.212(1)(h). Nonbinding preplanned adoption agreements, however, are statutorily permissible. Payments to the natural mother are limited to medical expenses associated with the birth, living expenses, and adoption costs. Finder’s fees for matching the natural and adoptive parents are prohibited. Any preplanned adoption agreement must provide the mother, if she is genetically related to the child, with at least 48 hours after the birth of the child in which to rescind her consent to the agreement. In order to enforce the agreement, the court must find that the mother was aware of her right to rescind the agreement and voluntarily chose not to rescind. Fla. Stat. § 63.213.

Answer 396

8. Adoption Deception A birth mother, or a woman holding herself out to be a birth mother, who is interested in making an adoption plan and knowingly or intentionally benefits from the payment of adoption-related expenses in connection with that adoption plan commits adoption deception if: i) She knows or should have known that she was not pregnant at the time the sums were requested or received; ii) She accepts living expenses assistance from a prospective adoptive parent or adoption entity without disclosing that she is receiving assistance from another prospective adoptive parent or adoption entity at the same time in an effort to adopt the same child; or iii) She knowingly makes false representations to induce the payment of living expenses and does not intend to make an adoptive placement. Fla. Stat. 63.212(2).

Answer 397

9. Restrictions on Adoption Advertising Only a Florida licensed attorney or a Florida licensed adoption entity may place a paid advertisement that a child is offered or wanted for adoption or that the person is able to place, locate, or receive a child for adoption. It is unlawful for a person to assist an unlicensed person or entity in publishing or broadcasting an advertisement making a minor available for adoption without including a Florida license number of the agency or attorney placing the advertisement. Fla. Stat. 63.212(1)(g).

Answer 398

Guardianship Florida has enacted a procedure to provide people who are incapacitated, on a permanent or temporary basis, with guardians. Fla. Stat. § 744. There are several types of guardianships in Florida, but the specific types are not tested on the bar examination.

Answer 399

1. Determination Prior to the appointment of a guardian, the court must determine that a guardian is necessary. Upon the filing of a petition, the court must find by clear and convincing evidence that the person for whom the guardianship is sought is unable to exercise specific rights or all of his rights. The allegedly incapacitated individual must receive notice of the action and the right to counsel in order to protect his due-process rights.

Answer 400

a. Effect of determination After a person is deemed incapacitated, either temporarily or permanently, and is in need of a guardian, the incapacitated party may lose significant rights. The rights that may be lost include the rights to vote, drive, marry, consent to medical treatment, and enter into a contract. The incapacitated party may also lose the right to make decisions related to his life, including where he shall live or how to manage his property.

Answer 401

b. Retained rights While the incapacitated party may lose several rights, as discussed above, he still retains many rights. A person who is deemed incapacitated, either permanently, temporarily, partially, or totally, retains the rights (i) to be treated humanely, (ii)to be as independent as possible under the circumstances, (iii) to a qualified guardian, (iv) to communicate with others, (v) to have visitors, (vi) to legal counsel, (vii) to receive proper education, and (viii) to receive information regarding the treatment of his real and personal property. Of particular importance are the rights to receive notice of all proceedings relating to his capacity, to have a continued review of his capacity as well as a review of the need for the restrictions of his rights, and to have the restrictions lifted and the rights restored at the earliest time possible under the individual circumstances. Fla. Stat. § 744.3215.

Answer 402

2. Guardians The guardian must be court appointed. a. Who is appointed While family members are typically appointed when possible, friends, banking institutions, or other willing persons may be appointed as long as they are not statutorily disqualified. If no other person is able to serve as a guardian, a public guardian may be appointed. Fla. Stat. § 744.309.

Answer 403

b. Responsibilities A guardian may exercise only those rights that have been taken from an incapacitated person and specifically vested in the guardian. Even if certain rights were vested in the guardian, court approval may be necessary before the specific action may be undertaken. Examples include entering into contracts and the sale or purchase of real property. Fla. Stat. § 744.361. A guardian must file a report on an annual basis with the court regarding the guardian’s responsibilities. If a guardian engages in malfeasance or misfeasance, he may be removed by the court. Fla. Stat. § 744.474.

FL Family Law Flashcards

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