Articles Posted in Modification (Custody/Time Sharing)

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It is once again the holiday season. It is the time of vacations from school and (perhaps) work, along with family get-togethers. For divorced spouses with children, it is also a time for managing the challenges of timesharing. Hopefully, the parents will work together cooperatively to facilitate the growth of each parent’s relationship with the child.

Regrettably, that is not always true. Whether it is the holidays, spring break, summer vacation or some other visit, your spouse may seek to make unreasonable demands regarding timesharing that aren’t part of your agreement or court order. When that happens, be sure you have a skilled Fort Lauderdale child custody attorney on your side to ensure that your rights and your relationship (and time) with your child are protected.

R.B. and M.O. were a divorced couple whose case involved long-distance timesharing logistical issues. The mother lived in Broward County. The father was a major in the U.S. Army stationed in Colorado. The couple had a timesharing order that said that the father and mother would “confer regarding airplane tickets and will mutually agree prior to booking” any air travel.

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There are actually multiple different ways to defend successfully when you child’s other parent asks the court to modify timesharing. For one thing, you can demonstrate that the proposed change isn’t in the child’s best interest, but that can often be intensive in terms of time, money and stress. Another, and perhaps more efficient, way to stop a proposed change to timesharing is to persuade the judge that there has been no “substantial change” in circumstances since the court issued the original order on timesharing. If the other parent hasn’t sufficiently proven that a substantial change has occurred, then the law prevents the court from making any changes at all. Whatever path you choose in order to defeat a proposed change to timesharing, be sure you have an experienced South Florida family law attorney advocating for you.

When it comes to the issue of a substantial change in circumstances, the case of D.H. and A.H. is a useful one. The couple divorced and the court awarded the parents shared parental responsibility with the mother receiving majority timesharing. Then, six months later, they were back in court based on motions to modify timesharing. The judge, at that point, decided to award the father majority timesharing.

The mother appealed and she won. In her appeal, she argued that the only “change in circumstances” that had occurred since the divorce judgment was the father’s moving some 47 miles away. The appeals court agreed with the mother’s argument that a move of such a short distance was too minor to constitute a “substantial change in circumstances.”

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Today, the realities of professional growth and development mean that a parent may find him/herself moving, perhaps even moving several times, across long distances in order to advance a career and provide for his/her family. That, unfortunately, can be especially complicated if the parent is divorced and has minor children from the marriage. The parent must ask the court for permission to make the move and, if the court does accept the relocation, the court may also find it necessary to make additional rulings as other aspects (like timesharing) are inherently intertwined with the issue of relocation. If you or your spouse has proposed relocating, make certain you have a knowledgeable South Florida family law attorney working for you.

The case of E.S. and S.S. was one that demonstrated just how interconnected these issues were. E.S. was a member of the U.S. Coast Guard, stationed in California. During the course of the divorce litigation, the wife, S.S., and the couple’s child moved from South Florida to Maryland. The trial judge set up a schedule in which the father would receive 12 visits each year–10 in Maryland and 2 in California.

However, life events intervened. The mother desired to move to North Carolina, and went back to court seeking permission to relocate with the child. The mother suggested that the court accept the move and modify timesharing to give the father 2 visits in California and 10 in North Carolina. The father opposed that, pointing out that, while there was a Coast Guard base near the child’s Maryland home, the nearest base to the proposed North Carolina destination was three hours away.

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There is a tendency among some people to believe that certain types of cases are ones that don’t really require the aid of a skilled attorney. Family law matters can be one example. Parties may think that their cases are simple enough that they don’t need an attorney or they may think that they cannot afford legal representation. With all the ways that a case can “go wrong,” and all the severe consequences that can arise if your family law case does veer south, whether it is a divorce action, a parental responsibility case or some other area of family law, it is more viable to argue that you can’t afford not to have a knowledgeable South Florida family law attorney on your side.

Here’s an example: K.E. and D.M. were former spouses who were in court because the husband had filed a request to modify timesharing, the couple’s parenting plan and the child support obligation. Generally, many of these issues often require multiple varieties of proof. As the parent seeking modification, you may be required to prove that substantial change of circumstances has occurred before the judge will even consider the modification you desire. If you clear that hurdle, you may need to show additionally forms of proof related to issues like the best interest of the child.

In this couple’s case, the judge ruled for the father and entered the modification he requested. The mother appealed but she again was unsuccessful. The Fifth District Court of Appeal’s opinion did not indicate whether or not one or both spouses had attorneys at the trial-court level, but, in the appeals court case, the mother proceeded without a lawyer while the father had legal representation.

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You go into court expecting and understanding that yours is a case about one thing. Maybe that one thing is alimony or maybe it’s your spouse’s petition for a domestic violence protective injunction. Once you’re in the hearing, though, the judge starts asking your spouse questions about your timesharing arrangement with your children. At the end, the judge alters your timesharing plan and increases your child support obligation. If that happens, what can you do? Would know how to handle such a scenario? It is not unreasonable for most people to have no idea how to respond. This is just one example among many where it pays to have representation from a skilled South Florida family law attorney, so that you can be sure that your rights are protected.

A very recent case from Miami-Dade County was example of how this can happen and what you can do. L.R.L. and J.R. were a couple who had three children together. After eight years of marriage, the wife filed for divorce in September 2017. The wife filed two petitions, one in 2016 and one 2017, seeking domestic violence protective injunctions. In her allegations, the wife asserted that the husband had a history of bipolar disorder, that he was not taking his medication and he had recently undergone a psychiatric hospitalization.

The husband also allegedly showed up at the wife’s front door between 4:00 and 5:00 a.m. one morning barefoot, half dressed and wearing a hospital sheet. This incident was one of the bases for the wife’s seeking the second injunction in 2017. Although the wife did not seeking any changes to the couple’s timesharing arrangement, the judge nevertheless asked the wife about timesharing. The wife then told the judge that she felt that the husband’s having unsupervised visitation was no longer proper.

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If you want a judge to make changes to your timesharing arrangement in Florida, it is very important to understand in advance what you need. Certainly, you need proof that the change you’re proposing in the best interest of the child. Beyond that, however, you also need proof that a substantial change of circumstances has taken place, and that the change was not something that you and your ex-spouse contemplated at the time of your divorce.. With evidence of that change, the court cannot order any change to your timesharing arrangement. When it comes to making the evidentiary showings necessary to get the timesharing changes your family needs, be sure you have legal representation from a skilled South Florida family law attorney.

The case of M.G. and C.G. was an example of how this process works and what analyses a court must make. The father, M.G., petitioned the court asking for a modification. The mother, C.G., opposed making any changes to the existing timesharing arrangement. (An Oklahoma court had given the mother primary custody in 2010.)

M.G. alleged that several significant changes had occurred since the Oklahoma court’s 2010 ruling. The father alleged that the mother had moved with the boy nine times and enrolled him in five different elementary schools, and that the mother failed to foster communication between the child and the father. The father’s petition alleged that the mother’s husband abused the boy. He also alleged that he had retired from the U.S. Air Force and, now out of the military, was in a better position to provide more care for the child.

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In any type of court case, including a Florida family law case, there’s the potential to think that you’re “behind the 8-ball.” Even if you find yourself in a very disadvantageous position legally, it is important not to assume that you have no options. Many times, under the law, you have more options than you might think, and skilled representation can make the difference between success and failure. Don’t give up on your case; take action instead and retain skilled Florida counsel. One South Florida father did exactly that, retaining our firm, and successfully getting a modification of his timesharing agreement overturned.

Our client, J.M., was a father who found himself hauled into court on the mother’s “emergency” request to modify timesharing. Filing an emergency motion can possibly allow you to get a hearing before a judge on an expedited basis. Even if you find yourself on the defending side of such a motion and facing a hearing in the immediate future, it is important to make every effort to retain counsel.

J.M. did not have a lawyer at his emergency hearing. The judge let the mother testify and let her call a witness. After the clock passed 5:00 p.m., the judge announced that the allotted time had expired and that the hearing was over. The father had not testified, had not presented any evidence and had not even finished cross-examining the mother. Unsurprisingly, based on this limited array of evidence, the trial court ruled in favor of the mother.

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Many times, people may associate legal phrases like “due process of law” with criminal cases. The reality is, though, that all parties in criminal and civil cases are entitled to due process of law. Part of this due process protection says that a court generally cannot take action against you without proper notice and a chance for you to be heard. To make sure that all of your rights, including your constitutional rights, are protected in your case, be sure you have a skilled Florida child custody attorney on your side.

One recent family law case in which this issue of due process played a key role in the outcome was a matter that involved a long-distance family dynamic and some allegedly dysfunctional relationships. The father lived in southwest Florida, while the mother lived in Indiana. The Florida courts had jurisdiction over the issue of timesharing. Problems allegedly began emerging, and, in early 2017, the mother decided to take legal action. According to the mother, the father was taking improper steps to alienate the children from her. The “extreme” alienation allegedly included the father’s urging the children not to obey the mother and his making “hateful, inflammatory, outrageous and false allegations” about the mother in his social media posts.

In a situation like this, there are two types of rulings by the judge that the mother could seek. Normally, a modification of timesharing would only take place after the court gave both sides notice of a hearing, allowed both sides to attend the hearing, and heard both sides’ proof. In “emergency” situations, though, a court can take action without going through these steps. That’s what happened in this case. The mother requested emergency relief during the mid-morning of Feb. 8, 2017. The father’s former attorney found out about the hearing in the 3 o’clock hour that afternoon, but he no longer represented the father. At 10:30 the next morning, the hearing went forward without the father or any legal counsel representing him. The judge ordered the suspension of the father’s timesharing, cut off all contact between the father and the children, and ordered the father to undergo a psychiatric evaluation.

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There are several things you should assess before you decide to go to court seeking a modification of a divorce judgment or alimony, child custody/timesharing, child support, or other family law-related court order. First, you have to “have a case,” meaning that the facts of your case must indicate that the law is potentially on your side. Second, you have to be entitled by the law to bring your case in the place where you want to file (which is known as “jurisdiction”). If you don’t have these things, you likely won’t be able to achieve the outcome you want. An experienced Florida child custody attorney can help you make these types of analyses and determine a path forward for you and your family.

The issue of jurisdiction can potentially trip up litigants because it involves a more technical understanding of legal and procedural intricacies. Take, as an example, the case of Clifton, who lived in Jacksonville. Some years earlier, Clifton had married Elizabeth, and the couple had three children. The couple later divorced, and a New York court entered the divorce order terminating the marriage. The couple agreed that the mother would be the primary residential parent and that the father would pay child support until the children turned age 21.

As happens for a lot of families, things evolved over time. The two older children had each turned 18, and one of them had moved in with the father in Florida. The mother and the other two children lived in Georgia.

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When you are dealing with a child custody or timesharing case that crosses state lines, the case can become complicated. You must deal with all of the requirements of the Uniform Child Custody Jurisdiction and Enforcement Act. That law says that custody and timesharing cases generally must be heard by a court in the child’s “home state.” However, if you live in Florida, and your child’s home state is somewhere else, there are certain situations in which you may still be able to bring your case here. In a recent Fifth District Court of Appeal case, the appeals court upheld a Florida trial court’s decision to modify timesharing, based upon the presence of “emergency” circumstances.

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