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Articles Posted in Custody/Time-Sharing

Here in Florida, the law strongly favors keeping the things discussed between you and your doctor or mental health provider private. There’s the doctor-patient privilege and the psychotherapist-patient privilege… and there are only a few situations where those privileges can be overcome. However, if you think that your ex-spouse’s addiction and/or mental health problems are potentially placing your children’s health and safety at risk and you need his/her medical records to prove it, now is not the time simply to assume there’s nothing you can do about it. Instead, reach out to an experienced South Florida family law attorney and find out what steps can be taken to protect your children.

A few months ago, this blog took a look at a parental responsibility dispute between a father and a mother from Polk County, the latter of whom was undergoing mental health care. In that case, the court ultimately ruled that the mother was not required to disclose her mental health records because she never did anything in that legal custody case to make her mental health an issue.

Now, we are going to look at the other side of that coin. Say you need to obtain your ex-spouse’s mental health and/or substance abuse records and get them before the judge. To do that, you need to prove that the privilege has been waived.

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Timesharing cases often can be among the most contentious types of family law matters. Sometimes, though, it’s very different. You want your ex to have time – maybe even the majority of the time – with the children, just like your parenting plan says. But lately, he/she has begun displaying troubling behaviors – perhaps indicative substance issues or maybe mental health problems. Now your focus is primarily upon ensuring the safety of your child. When you’re in that kind of situation, make certain you are doing everything you can to protect your child’s well-being. That includes retaining an experienced South Florida family law attorney.

For V.L., a mom from Naples involved in a parenting dispute, the “red flag” about her ex-husband’s mental health was a timesharing exchange in late November 2019. At some point during that exchange, the father phoned the police. An officer arrived and, upon encountering the man, “determined that the father was suffering from an anxiety attack and was in a ‘practically paralyzed’ state, barely able to communicate.”

The episode was so bad that had the child not already been scheduled to go to V.L. anyway, the officer “would not have allowed the father to leave with or without the child while he was in such a state due to the officer’s fear for the father’s and child’s safety.” The responding officer told V.L. of the officer’s “concerns about the father’s ability to care for the child during an emergency.”

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With close connections, both culturally and economically, to the Caribbean, Central America, South America and beyond, South Florida is a truly international region. The impacts of that are felt in many areas, including in family law. For areas (like here) where family law disputes cross not just state but national boundaries, it is essential to have a knowledgeable South Florida family law attorney who understands all of the laws that go along with child custody cases, including international custody cases.

One of the most important pieces of law when it comes to certain international custody disputes is something called the “Hague Convention.” While that treaty officially covers the topic of “international child abduction,” its effect on family law goes beyond just kidnapping cases. It also has the ability to impact a substantial array of child custody disagreements.

That treaty had a major impact on one Brazilian couple’s custody dispute, which was recently litigated here in Florida. The parents had married in Brazil in 2010 and welcomed a child in 2012. In 2016, the father, the child and the mother (who was pregnant with child #2) traveled to Florida so the father could advance his medical career by participating in a cardiology fellowship, and so the mother could deliver the second child in the United States.

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Many families with children – even those where divorce is involved – may go through the children’s entire formative years with everyone living in one state. For a lot of other families, though, that’s not the case. When you’re in that latter group, any legal disputes regarding parental responsibility and timesharing can become profoundly more complicated and may possibly force you to have to litigate in some far-away state. Having a skilled South Florida family law attorney by your side can provide you with immense benefit when it comes to seeking to avoid such a disadvantageous situation.

The story of an ended marriage with children and a post-separation family spread across two states hit the news recently. Devoted fans of the Real Housewives of New York reality TV show will undoubtedly recognize the name “Jules Wainstein” as one of the cast members during Season 8. People following celebrity “gossip” news will also recognize Jules Wainstein as a new divorcee. People.com reported that she and her husband, Michael, who share two children and who separated in 2016, received their final judgment of divorce this fall. Although Wainstein and her husband resided in Manhattan, she told BravoTV that she and the kids “temporarily” relocated here to South Florida, living with her parents in Boca Raton.

The mother’s comments to Bravo seem to indicate a clear intent to return to the Big Apple but, certainly, Wainstein wouldn’t be the first New Yorker who “temporarily” moved to South Florida and ultimately decided to stay. If the mother and children were to remain in Florida, any child custody issues that they would have to litigate in the future would implicate a statute known as the “Uniform Child Custody Jurisdiction and Enforcement Act,” or UCCJEA.

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You probably already knew that the outcome of your family law case can be affected by the state in which the case is litigated, as another state’s laws may be different from those of Florida. But you may not have known that the outcome of your case can differ based on where it’s litigated within Florida. A case heard in Broward County might conceivably have a different outcome than if it were heard in Orange County, due a difference of opinion between the two different District Courts of Appeal (the Fourth and the Fifth, respectively) whose rulings control in those counties. This is just one more example of the many nuances of the law and just one more reason why you can benefit from having a knowledgeable South Florida family law attorney on your side.

Very recently, the Second District Court of Appeal in Lakeland made an important new ruling. In 2019, a trial court in Pasco County modified two parents’ parenting plan, switching from majority timesharing with the mother to majority timesharing with the father.

In her appeal, the mother argued that the trial judge made a critical mistake in failing to give her specific instructions on what steps she must complete in order to regain majority timesharing. In the past, the Second District court had said that, “when a trial court denies or restricts a parent’s time-sharing with his or her child, it must specify steps for the parent to take in order to regain meaningful time-sharing.” In D.M. and B.M.’s case, the court made a significant change to that rule, stating that the decision to include or forego stating such instructions is a matter of judicial discretion, so failing to put them in an order is not necessarily a legal error.

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For better or worse – and it’s often “worse” – COVID-19 has impacted nearly every part of our lives. The pandemic has damaged many marriages and created an uptick in the number of spouses seeking divorce in Florida. The virus’s impacts can also be felt when it comes to timesharing and parental responsibility in Florida. As some cases are starting to demonstrate, a parent’s failure to keep their child (or children) sufficiently safe by following governmental guidelines may be enough to cost them time with the children. This is, of course, a new and emerging area of the law so, whether you need to seek a timesharing change or to oppose one, be sure you are armed with legal representation from a skilled South Florida family law attorney.

Losing timesharing… over mask usage? Wondering how that could happen? A report from the Sun-Sentinel offers some insights. The case, litigated in Broward County, involved a Florida father, a mother who had moved from Coral Springs to North Carolina and a child with asthma. The child’s asthma placed him in the elevated risk group regarding COVID-19.

In June 2020, according to the report, the mother posted a “selfie” from the waiting room of her doctor’s office. The mother captioned the picture “no mask for this girl.” That action, which probably seemed relatively insignificant at the time, eventually came back to haunt in her Florida timesharing case.

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When you go through the process of getting a divorce and you have minor children from the marriage, there are multiple legal issues that must be synthesized and work together. If not, problems are almost inevitable. For example, if your timesharing and your child support are based upon two different parenting plans, then something is going to go wrong. Either you’ll be paying too much (or too little) in child support, or else you may be getting an incorrect amount of timesharing. Whatever has happened, you still have options; namely, through the process of making a motion for modification. To make sure you’re going about that process properly, be sure you have a skilled South Florida family law attorney by your side.

A.C. and E.C. were a couple whose divorce case was an example of this problem. The couple had two minor children, and their 2013 divorce included a parenting plan and child support order. The parenting plan gave the father roughly 82 nights of timesharing. For reasons not explained by the Court of Appeal, the child support order did something very different: it calculated support based on the father having the children for 146 nights. Obviously, this disparity could potentially make a huge difference in the child support amount calculated under the guidelines.

Four years later, the mother asked for a modification of child support. The father responded by filing a claim for modification of timesharing.

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A lot of times, people who have an unsatisfying experience in court – especially family court – say they lost because the judge “had it in“ for them. Often this is the bitter complaint of someone who didn’t have a strong case or perhaps did have an adequate case but neglected to proceed without an experienced South Florida family law attorney.

Judges are not perfect, though, and sometimes, that appearance of bias is something more than just a figment of the imagination of an unsuccessful litigant. When a genuine issue of judicial bias occurs, this is another time when it pays to have a skilled attorney on your side so that he/she can aid you in handling it the right way.

E.M. was one of those litigants. In January 2020, E.M. and her infant child moved from Key West to Pennsylvania after the child’s father allegedly threatened to punch E.M. The mother filed a custody action in Pennsylvania and the father opened a custody case in Florida. The mother’s Florida attorney also filed a motion seeking to get the Florida custody action dismissed. The judge in Key West denied that motion.

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When you are in court on a paternity case, two of the main legal things that you’ll likely be concerned with are timesharing and child support. One of the key things to keep in mind is that these two elements should be interconnected with one another; which is to say that, if you are the parent paying child support but you also have the child for a significant amount of time, then the law says that latter fact should entitle you to pay the child’s other parent a smaller amount of child support each month. To make sure the child support you’ve been ordered to pay is fair, based on the totality of your circumstances, be sure you have representation from a skilled South Florida family law attorney.

How does that reduction process work? A recent case from Palm Beach County offers a good example. K.W. was a father living in North Carolina, and R.B., the mother, lived in West Palm Beach. After the mother filed a paternity petition, the court set up a parenting plan. The plan called for one schedule in even-numbered years and a different schedule in odd-numbered years. This type of plan is not uncommon, as it allows each parent to, for example, have the child for 1/2 of the summers and also 1/2 of Christmases.

This child spent 84 overnights with the father in even-numbered years, but fewer than 73 in odd-numbered years. This was because the plan dictated that the father was to have the child for summer break and winter break in even-numbered years, but not in odd-numbered years. As a percentage, that meant the child spent 77% of the time with the mother, and 23% with the father in even-numbered years. In odd-numbered years, the child spent less than 20% of the year with the father.

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When a marital relationship breaks down, that breakdown can cause some spouses to respond in a hyper-adversarial way, especially if there are children involved. They may try to lay hands on all kinds of privileged information, such as your past medical history and treatments. Often, this evidence is irrelevant and inadmissible, but you still need to know how to go through the correct legal steps to avoid having to divulge this very private and sensitive information. The right South Florida family law attorney can be instrumental in keeping your private medical information private.

S.R. was a mom caught in that kind of circumstance. After she filed for divorce, her husband, T.R., sought to force 11 medical providers, each of whom allegedly had provided medical, psychological or psychiatric care to S.R at some point, to divulge their records of any such treatment. The husband asked for a wide range of disclosures, including “notes, prescriptions, treatment records, consultation reports, lab reports, blood work reports, office notes by staff of the facility and any electronic records maintained during the course of treatment.”

In addition, the husband also asked the court to order S.R. to disclose all the records she possessed pertaining to “medical and/or psychological and/or psychiatric treatment or counseling” she’d undergone in the previous five years.

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