Articles Posted in In The News (Custody/Time Sharing)

In a groundbreaking decision earlier this month, a sharply divided Florida Supreme Court concluded that a woman who donated her eggs to her lesbian partner so that the couple could have, and raise, a child together possesses a fundamental constitutional right to parent the child. In the process, the court declared unconstitutional a statute that created an automatic waiver of the parental rights of all reproductive material donors, concluding that the statute, as applied to the lesbian egg donor, violated her Due Process rights.

The case involved the custody of the daughter of a lesbian couple. In 2003, the couple set about to have a child. They used one partner’s egg, but the other partner carried and delivered the child. The couple gave birth to the daughter in January 2004. Two years later, though, the relationship failed and the birth mother cut off all contact in December 2007.

The other partner, known in the court documents as “T.M.H.,” filed a legal action to establish her parental rights to the daughter. The birth mother challenged the action, arguing that Florida law afforded T.M.H. no parental rights and that, by signing an “informed consent” form, T.M.H. had surrendered all parental rights. The trial court ruled in favor of the birth mother, but the 5th District Court of Appeal reversed, concluding that the Florida Statute governing donated reproductive material was unconstitutional as applied to T.M.H.
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Just three short months after Miami Heat guard Dwyane Wade’s divorce became final, a Florida appeals court was again called upon to enter a decision in the half-decade long legal contest. The 3d District Court of Appeal overturned a trial court’s order requiring the NBA star’s ex-wife to undergo a mental evaluation and also removed the trial court judge from the case, citing his denial of the “most basic right of due process” to the ex-wife, Siohvaughn Funches.

Many of the facts of Wade’s ill-fated marriage are well-known by now. Wade and Funches married in 2002, had two sons, and filed for divorce in 2007. The divorce proceeding turned into a marathon affair, becoming final only three months ago. In the property settlement, Wade agreed to pay Funches $25,000 in alimony, with another $10,000 in travel and living expenses. The basketball star also agreed to pay Funches’ mortgage and gave her the use of four cars.

This outcome apparently displeased the ex-wife, as Funches took to the streets of her hometown of Chicago. Funches stages a public protest claiming that the divorce had left her “on the streets.” Wade’s legal team fired back, returning to court to argue that Funches’ protest demonstrated her mental instability and dangerousness and requested that the court order a psychological evaluation of the woman and reduce her contact with the boys. Trial court judge Antonio Marin ordered the evaluation.
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The Miami-Dade area will be host to a landmark custody battle that will decide the fate of not only the litigants involved but of Native American-Florida relations.A West Miami-Dade resident will be fighting for the custody of his two children in a Miami-Dade court, after having been repeatedly denied parental rights in Native American Tribal Court. The mother of his children and he never married. She is a member of the Miccosukee tribe. After their relationship dissolved the two shared custody and visitation of the children in an informal and unofficial weekend-by-weekend manner.

In October, relations went sour between the two and the woman filed for a petition for temporary custody in Miccosukee tribal court in which the petition was immediately granted and a court date was set. The man reacted by having his attorney file a petition in Miami-Dade and the two of them attended the Miccosukee tribal hearing. The man’s attorney was not allowed in the courtroom based on his “failure to speak the Miccosukee language”. The hearing was conducted wholly in the tribal tongue with only a brief translation. The woman was awarded full custody.

In this case, the central focus will not be the Indian Child Welfare Act of 1978, which so often comes into play during adoption and custody battles regarding Native American children, but rather the Uniform Child Custody Jurisdiction and Enforcement Act which provides the courts jurisdiction in deciding custody disputes involving citizens of different states or countries. The act follows federal law and accordingly Indian reservations, the Miccosukee included, are treated as sovereign states.

The key provision of the law: the court with jurisdiction is the one from where the children resided “within 6 months” of the “commencement of the proceedings” for child custody. The man is contending that the woman does not and has not lived on the reservation; the woman is obviously claiming she has resided on the reservation and that she has been the sole financial provider for the children.

The state of Florida officially recognized the now well known reservation known as the Miccosukee Tribe of Indians of Florida in 1957. The reservation was recognized by the federal government in 1962.

These types of custody battles are not uncommon in states with large Indian populations. In South Florida, however, this case is likely a first, according to the attorneys. The latest census puts the number of Native Americans in Florida at less than 10,000. The Miccosukees are the Miami-Dade area’s biggest local tribe with a population of 600.
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According to the National Council on Disability, about one in ten kids in the United States have at least one parent who is disabled. In addition, about 4.1 million handicapped parents are reportedly caring for a child under the age of 18. Although the Americans with Disabilities Act was passed in 1990 to protect the rights of handicapped citizens, disabled parents throughout the country still allegedly face a great deal of difficulty maintaining custody of their children. More than half of states purportedly allow a parent’s rights to be terminated based on a real or perceived disability. In addition, up to 80 percent of parents who suffer an intellectual or psychiatric disability allegedly lose custody of their offspring.

Each state reportedly allows disability to be considered by a court when determining child custody issues. In some states, diseases such as cancer are also taken into account. Additionally, disabled adults purportedly face discrimination with regard to adoption in most cases. Robyn Powell, an attorney for the National Council on Disability, stated she believes individuals with a disability may have the ability to adjust to the stresses associated with becoming a parent more easily than others because they are already accustomed to adapting. Powell said such parents should be supported instead of punished.

Powell stated that the number of disabled parents across the nation is expected to grow over the next few years as many wounded warriors return from overseas deployment. She also reportedly believes both private and public organizations should work hard to support disabled parents who require additional assistance and to ensure that their parental rights are protected. According to Powell, child welfare organizations throughout the nation should begin to assume disabled parents are capable of raising their children despite that they may require additional community support.

The question of who will care for your children in the event of a marital split is generally an emotional one. Most parents worry about not only losing custody of their kids, but how much time they will have to spend with them throughout the week and on important dates such as birthdays. Since October 2008, divorcing parents in Florida must enter into a court approved time-sharing agreement that states exactly how much time a minor child will spend with each parent. In the alternative, a family law judge will create a time-sharing schedule for parents who cannot agree. A Florida family court will normally examine a number of factors when considering any child custody award or agreement. A hardworking family law attorney can explain the process in more detail.
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Governor Rick Scott recently signed a 61-page document that has essentially rewritten Florida adoption laws. House Bill 1355, titled “Protection of Vulnerable Persons,” was created after a Baker County judge reportedly placed a four-year-old girl in the custody of a registered sex-offender who was not her biological father in July 2011.

The heated custody battle reportedly began after the child’s grandmother applied to formally adopt her. The case drew national attention when the girl was removed from her grandmother’s home and placed with her deceased mother’s husband. The child’s mother was killed in a car accident one month after the husband reportedly filed for divorce from the woman. Because Florida law considered him the child’s legal father, the Jacksonville judge was required to award custody to the man.

The new adoption law will reportedly have a significant impact on the adoption process in Florida. Portions of the law were designed to steer more children away from the current state adoption process administered by the Florida Department of Children and Families (DCF) and into allegedly more efficient private entity adoptions. The law also requires family court judges to notify an individual relinquishing their parental rights that he or she may speak to private adoption organizations in addition to DCF.

Under the new law, DCF will no longer have the authority to take custody of a newborn that is abandoned or tests positive for drugs or alcohol. The adoption law will also tighten adoption regulations and require a home study before a child in Florida may be transitioned into a new home.

Florida’s new adoption law provides that only state-licensed private adoption entities may advertise children who are available for adoption. Previously, anyone could legally advertise an adoptable child. The aim of the advertising measure was purportedly to cut down on a number of private adoption organizations that were not reputable. House Bill 1355 was amended a total of nine times before it unanimously passed both the Florida House and Senate.

In Florida, family law is constantly changing and evolving. If you are faced with a family law matter such as a child custody dispute or a step parent adoption, it is a good idea to consult with a knowledgeable Florida family law lawyer early on in the process.
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Yesterday, a judge in Miami-Dade’s Family Court lifted an emergency protection order that forbade a 22-year-old father from seeing his 3-year-old daughter. The father is currently engaged in a custody battle with the child’s mother, a Venezuelan national who reportedly accused him of kidnapping their daughter in March 2011. She allegedly filed a missing persons report on the child before returning to Venezuela to give birth to another baby. It is currently unclear whether she ever intends to return to the United States.

In February, the father was reportedly arrested in Pensacola and returned to Miami-Dade on interfering with child custody charges. He was released from jail on Wednesday. His mother was also reportedly arrested for interfering with child custody after she brought the child to court last month in order to demonstrate she was not missing and was being well cared for. Last Monday, a Miami-Dade judge dismissed both interfering with custody charges.

According to the man’s mother, she and her husband had custody of the child at the time the child’s mother reported her missing. The child’s mother allegedly accused the child’s father of child abuse, child neglect, and domestic violence as well as kidnapping. A home study of the grandmother’s residence reportedly revealed no environmental hazards, no evidence of abuse, and stated the child was happy. Following the home study, Miami-Dade Circuit Judge Cindy Lederman granted temporary custody of the child to the grandparents. Permanent custody of the child will not be resolved until the child’s mother returns from Venezuela.

To many parents, the question of who will retain custody of your children following a separation or divorce is an emotional one. Since October 2008, child custody arrangements in Florida have been referred to as time-sharing schedules. A time-sharing agreement generally outlines the amount of time a child will spend with each parent, including overnights, weekends, school breaks, and holidays. If parents cannot come to an agreement regarding a time-sharing plan, one will be ordered by a family court. A Florida family court will normally examine the moral fitness of the parents, any evidence of abuse, and a variety of other statutory factors when creating a time-sharing schedule. Because a Florida parent who wishes to modify a time-sharing plan must show substantially changed circumstances, modifying a time-sharing plan can be difficult. If you are a Florida parent who would like to establish or modify your child’s time-sharing plan, it is a good idea to contact a skilled family law lawyer to assist you.
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A Titusville father and his girlfriend are being held without bail in Brevard County after authorities reportedly removed a 12-year-old boy who was allegedly starved and locked in a small closet in their home. The son of the 38-year-old father was reportedly taken to a local hospital where he was treated for dehydration and malnourishment after police went to the home to investigate a child abuse report. The father and his girlfriend were both reportedly arrested by police and charged with three counts each of aggravated child abuse and child neglect. During an emergency custody hearing, the boy, his 10-year old sister, and the girlfriend’s 15-year-old son were reportedly placed in the care of the Florida Department of Children and Families by Brevard County Judge Tonya Rainwater.

The couple is accused of allegedly starving the boy and locking him up as punishment for stealing food. According to police, the 12-year-old weighed only 40 pounds when he was removed from the home. The child was allegedly locked in a closet, locked in a bathroom, or strapped to a bed repeatedly over the course of the preceding year. The other two children taken from the home were also examined by physicians.

The father was reportedly investigated in 2010 for child neglect. After the allegations were investigated, the boy was allegedly taken out of the Brevard Public School system. Until this month, there was no further contact between the household and child welfare officials. Although the children are under the supervision of the Florida Department of Children and Families, they are currently being cared for by a grandparent. State officials are also attempting to locate the 12-year-old’s mother. They have reportedly located and are communicating with the father of the girlfriend’s son. The father of the 12-year-old reportedly has another child living with an ex-wife in Ohio whom he has not seen in approximately 14 years.

Few subjects are more emotional to parents than who will care for your children after a divorce or other separation. In the State of Florida, a parent who seeks to modify a child custody order has a responsibility to demonstrate substantially changed circumstances and the child’s best interests must justify any change. A family court will examine a parent’s fitness to raise the child, the parent primarily responsible for the child’s upbringing, the child’s age, and the child’s preference when considering a request to change a custody arrangement. Other factors such as the moral fitness of the parents, any evidence of sexual violence, child neglect, child abuse, or child abandonment, and various other statutory factors will also be examined.
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This week, Florida’s Third District Court of Appeal declined to disqualify Miami-Dade Circuit Judge Maria Espinosa Dennis from a child custody case between two prominent area lawyers. After the two attorneys divorced in 2005, the former couple agreed to share custody of their two small children equally. Since that time, their relationship reportedly deteriorated so much so that the former wife, a law professor, asked Judge Espinosa Dennis to hold the former husband, a partner at a law firm, in contempt for allegedly violating provisions in their divorce agreement. According to the ex-wife, the ex-husband has continuously and repeatedly sent her abusive emails. The ex-wife also asked the judge to modify the former couple’s custody agreement.

Last November, the ex-husband filed a motion asking Judge Espinosa Dennis to recuse herself from the custody case after the law firm at which the ex-wife’s attorney is employed co-sponsored a fundraising event and donated $500 to Judge Espinosa Dennis’ re-election campaign. Judge Espinosa Dennis called the motion legally insufficient and denied his request. The former husband then appealed to Florida’s Third District Court of Appeal seeking her removal from the case. According to the ex-husband, it would be impossible for Judge Espinosa Dennis to treat him fairly due to the donations made to her campaign. Interestingly, the ex-husband’s own law firm also reportedly donated $500 to the judge’s re-election campaign last December.

The ex-wife’s appellate attorney argued that the ex-husband is simply unhappy with Judge Espinosa Dennis’ prior rulings against him. He also claims the former husband has continued the litigation in an attempt to drain his former wife’s financial resources. Because of this, the ex-wife asked the appellate court to award her approximately $100,000 in attorney’s fees. In a judgment which offered no legal reasoning except a citation to a 1991 Supreme Court of Florida case, a panel of Third District Court judges denied the ex-husband’s petition to remove Judge Espinosa Dennis from the case. Judges Richard J. Suarez, Judges Juan Ramirez Jr., and Vance E. Salter also provisionally approved the ex-wife’s request for legal fees.

Florida is a no-fault divorce state. If you have minor children, your final judgment of divorce will include a parenting plan and a custody arrangement, also called a time-sharing plan. Such a plan will outline which parent a child will spends holidays, overnights, and all other days with each week. If parents cannot agree on a time-sharing plan, one will be ordered by the court. The modification of a time-sharing plan can be difficult as a parent who is seeking modification must demonstrate changed circumstances justify the modification. If you are seeking to establish or modify your child’s time-sharing plan, a capable Broward County family law lawyer can assist you.
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A Miami-Dade judge has refused to recuse herself in a heated Florida custody dispute between two prominent attorneys, despite her alleged ties to the law firm representing the former wife. The spouses divorced in 2005 after seven years of marriage. At the time of their divorce, the couple reportedly agreed to share equal custody of their two sons. Since then, the ex-wife has accused the ex-husband of violating provisions in the former couple’s divorce agreement by repeatedly calling her names in emails. She has asked Judge Maria Espinosa Dennis to hold him in contempt and amend the custody agreement.

According to Florida election records, the law firm at which the former wife’s attorney is employed donated $500 to Judge Espinosa Dennis’ re-election campaign on November 15th. The day before, the firm also co-sponsored a fundraiser for Espinosa Dennis at a restaurant in South Miami. The former husband filed a motion asking Judge Espinosa Dennis to recuse herself on November 1st after invitations to the re-election fundraiser were distributed. Judge Espinosa Dennis denied his request and he appealed to Florida’s Third District Court of Appeal. He purportedly feels he will be unable to receive a fair hearing before the lower court judge.

The ex-wife’s law firm is also seeking an award of approximately $100,000 in costs and attorney’s fees against the ex-husband. Her appellate attorney has stated that the former husband’s recusal argument has no merit and is legally indefensible. According to the ex-wife’s lawyer, the ex-wife’s law firm took no substantive part in the re-election fundraiser and only attended the event. He also said that the Florida Judicial Ethics Advisory Committee only requires a judge to analyze an attorney’s campaign involvement when faced with a recusal request. No employee at the law firm is on Judge Espinosa Dennis’ campaign committee.

Although the former husband claims Judge Espinosa Dennis had an obligation to disclose the law firm’s fundraising efforts as a possible conflict of interest, the former wife’s attorney argues that the ex-husband is merely upset with the judge’s prior rulings against him. He also alleges that the ex-husband has continued litigation for more than two years in an attempt to drain his ex-wife’s financial resources. The former husband’s attorney stated the judge’s decision to continue to preside over the case is insensitive and fails to take into account how any reasonable individual would react given the situation.

Custody arrangements in Florida are referred to as time-sharing plans. A time-sharing plan will specify the amount of time a child will spend with each parent each week. The plan will also specify where children will spend overnights and holidays. If a child’s parents are unable to agree on a time-sharing schedule, the court will set a schedule for them. A court ordered time-sharing plan will take into account statutory factors such as the child’s preference and any instances of abuse or violence. In order to modify a time-sharing plan, Florida law requires the parent seeking modification to show substantially changed circumstances.
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A Lee County judge signed an order Thursday demanding the return of Country singer Mindy McCready’s 5-year-old son, Zander, to his maternal grandmother’s care in Florida. McCready reportedly took the boy to her home in Tennessee after visiting him late last month at her father’s Florida home. McCready, who is reportedly seven months pregnant with twins, said she was currently incapable of travel and allegedly refused to return her son to Florida.

McCready’s mother was named Zander’s guardian in 2007. Since then, the two have engaged in a long battle over his custody. The 36-year-old singer recently accused her mother of abusing Zander and stated she took the child in an effort to protect him. Her mother denies the allegations. In August, McCready also filed a libel lawsuit against her mother.

Early Saturday morning, Arkansas authorities reportedly took Zander into custody at a previously unoccupied summer home in Heber Springs. McCready allegedly did not have permission to be on the property and was found hiding in a bedroom closet with her son. The Arkansas Division of Children and Family Services is currently making arrangements to return the child to his grandmother in Florida. McCready has allegedly told her half-brother via text message their mother would never see her again.

McCready has reportedly led a complicated life since finding fame. She allegedly suffers from severe depression, has publicly battled a drug addiction, and she spent time in the hospital three years ago for an alleged suicide attempt. It is unclear whether McCready will now face criminal charges for violating the custody arrangement and the judge’s order.

Changes to child custody arrangements must be approved by the courts. In Florida, a parent must show substantially changed circumstances since the original arrangement was created before a court will modify a child custody arrangement. Additionally, the child’s best interests must justify any change. A parent’s fitness to raise the child, the child’s age, the parent primarily responsible for the child’s upbringing, and the child’s preference are all factors a court will look at when determining the best interests of a child. The court will also look at other factors such as the moral fitness of the parents, any evidence of sexual violence, child abuse, child neglect or child abandonment, and various other statutory factors.
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