Articles Posted in Modification (Custody/Time Sharing)

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The implementation of a parenting plan hopefully represents the culmination of a collaborative process to create an outcome in the best interests of the children involved. Sometimes, though, circumstances change, and those changes may trigger the need for a modification of the plan. When they do, the Florida Statutes have some specific requirements regarding what must be established in order to modify a custody arrangement, especially if that modification involves stripping one parent of all decision-making authority.

A recent example of this in the 5th District Court of Appeal was the custody dispute between two parents. The couple married in 1993, but after a decade and a half of marriage, the husband filed for divorce. The couple’s 2009 marital settlement agreement called for a fairly common custody arrangement, with the mother getting primary physical custody, the father getting visitation, and the parents agreeing to share “parental responsibility on all aspects of the children’s lives.” The agreement also called for the father to pay child support.
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A recent child custody battle represents the potential hurdles that can sometimes arise when trial courts attempt creative compromises. The 4th District Court of Appeal recently issued a ruling throwing out a trial court’s modified timesharing plan because the plan was something neither parent had proposed and neither side had any notice was a possible outcome.

A couple, K. and O., lived in Palm Beach County during their marriage and had one child together. After they split, the husband moved to the Florida Keys for work-related reasons. Initially, the child spent three days a week with one parent and four with the other. This timesharing plan had the benefit of giving the parents an approximately 50-50 split in timesharing, but it also presented a problem in that it required the child to travel 400 miles (round-trip) every week back and forth between Lake Worth and Bahia Honda.
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Crafting parenting and time-sharing plans are challenging enough under ordinary circumstances. When the child whose custody must be resolved also has special needs, the decisions become even more difficult. However, when these cases go to court, the law imposes the same analysis as all other parenting plan and time-sharing matters. Namely, the court must decide based upon the best interest of the child. The law does not require the involvement of guardians ad litem or expert witnesses, as one recent Third District Court of Appeal ruling highlighted.

A Florida man and woman, both of whom were deaf, had a son who was also deaf. The mother and son lived in Broward County, and the mother enrolled the boy at a school in Pompano Beach with both deaf and non-impaired students. The father, who lived in St. John’s County, sought to modify the time-sharing plan so that the child could attend the Florida School for the Deaf and Blind, located in St. Augustine near the father’s home. The school offered education entirely in sign language and also allowed deaf students like the son to participate in extracurricular activities and athletics.

At the end of the first day of trial, the judge expressed that he “needed” to appoint a guardian ad litem. However, since the court could not find a guardian fluent in sign language, no appointment was made. Ultimately, the trial judge sided with the father, ordering that the father have the child during the school year, with the mother receiving custody during the summers, and the parents would alternate weekends with the boy.
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A father’s desired move with his two sons from Florida to New Jersey fell flat because, although he persuaded a trial court judge to OK the relocation, the trial court order failed to make findings that the move benefited the children. The 5th District Court of Appeal reversed the ruling, stating that the evidence in the case demonstrated a move in the best interest of the father, not the children.

After the husband and wife separated early in 2013, a trial court entered an order establishing the pair’s equal time-sharing of their two children. A few months later, the husband sought the court’s permission to relocate, with the children, to New Jersey, so that he could continue pursuing his pharmacy degree. The husband stated that the move was in the children’s best interest because he could provide the children with an excellent home and education in New Jersey, and that the completion of his pharmacy degree would greatly increase his earning potential and ability to provide for the children.

Both parents agreed to allow the court consider a custodial evaluation report prepared by a psychologist. The doctor advised against moving the children away from their Brevard County home, where they’d lived their entire lives. Nevertheless, the trial court sided with the husband and approved the move. The court found that, despite the extraordinarily contentious nature of the couple’s divorce, the husband sought the relocation “in good faith.” The court did not find, however, that the move would be in the best interest of the children.
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An ex-husband successfully secured primary physical custody of the four children he shared with his ex-wife, but failed to persuade a trial court to order his ex-wife to pay child support on all four children. That’s because a governmental agency already paid a monthly stipend for the fourth child and, since the trial court’s custody modification order gave that stipend to the husband, a Florida appeals court determined that it was not improper to refrain from making the ex-wife pay child support on that child.

J.L.B. and his wife, S.J.B., divorced in 2008. Initially following the divorce, the wife held primary physical custody of the children. Following an incident in which the Florida Department of Children and Families removed the couple’s children from the wife’s home, the husband asked an Orange County court to give him sole custody of the children or, at least, make him the primary physical custodian. The court agreed and ordered that the husband receive majority time-sharing within a joint custody arrangement.

As part of this ruling, the court also assessed a child support obligation to the wife. The husband promptly appealed the child support portion of the court’s ruling. The husband argued that the trial made an error by calculating the wife’s support obligation based on three children, when the couple shared custody of four children.
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A recent case, involving a Pennsylvania man and his biological child living in Florida, demonstrated the significant differences that sometimes exist between science and the law. A Florida appeals court both denied the biological father’s effort to litigate his custody dispute in his home state, and foreclosed his efforts to make a claim anywhere regarding custody of the child. The man’s resounding defeat resulted from several shortcomings, including his flouting custody orders and, in particular, his lack of legal relationship to the child because the mother was married to another man at the time of the child’s birth.

The case revolved around a child born to a couple in 2004. The child’s birth certificate listed the husband as the father; however, he was not the father. The child was the product of the mother’s relationship with another man. The child resided with the maternal grandmother from birth. The mother died in 2008, still married to the husband. After the mother’s death, the grandmother sought custody and the husband consented. At this point, the father sought to intervene and asked the court to declare him the child’s father and award him custody. The trial court concluded that the husband had severed his parental rights by abandoning the child, declared the biological father the father and awarded him custody.

Following a reversal of the ruling by the 1st District Court of Appeal, the grandmother re-obtained legal custody. The father, however, refused to hand over the child, and the child remained in his physical custody for a 12 month period during which he had no legal rights regarding the child.
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Miami Heat superstar Dwyane Wade’s lengthy custody battle returned to a Chicago courtroom recently after his ex-wife, Siohvaughn Funches-Wade, allegedly refused to return the couple’s two sons over Father’s Day weekend. When Funches-Wade reportedly declined to turn the children over to Wade’s sister for transport back to Miami, she was arrested and charged with misdemeanor child abduction, interference with visitation, and resisting arrest. In response to the incident, Wade, who was previously awarded sole custody of the children by a Cook County family court, filed a petition requesting that Funches-Wade’s right to visitation be suspended.

Instead of suspending Funches-Wade’s visitation rights, a Cook County judge ordered that all visits during the next four months take place in Florida where the children currently reside with their father. According to Funches-Wade, she has not had uninterrupted access to her children since she was arrested. Her attorney, who recently asked the court to allow him to leave the case, stated it was not typical for law enforcement officers to enmesh themselves in a child custody case. He reportedly believes authorities responded to the incident as a result of Wade’s celebrity.

Wade stated that, despite his recent petition before the court, he would like for his former wife to remain in the boys’ lives. Funches-Wade claims she did not return the children at the specified time due to a severe and debilitating asthma attack.

The custody of a couple’s children is always an especially emotional subject, and most parents worry about how much time they will be allowed to spend with their kids following a divorce. In Florida, a parent who seeks to modify a child custody order must show that one of the parent’s circumstances has changed in a substantial way. Additionally, the best interests of a couple’s children must also justify any requested custody modifications. A Florida family court judge will examine a number of factors under Florida law when considering any request to modify custody. Those factors include the child’s age, the child’s own preference, each parent’s fitness to raise the child, and which parent is primarily responsible for the child’s upbringing. Any allegations of child abuse, neglect, or abandonment, the moral fitness of each parent, and any evidence of sexual violence will also play a factor in a judge’s child custody decision.
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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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Many men and women from Broward that are enlisted in the military may find themselves in need of a Fort Lauderdale divorce lawyer. According to an article published in the USA Today and Sun Sentinel, divorce rates for soldiers enlisted in the Army increased for the seventh year. 10,000.00 married G.I.’s divorced during the fiscal 2009. It is also being reported that 4% of marriages among soldiers failed.

The Army has found that an increasing number of U.S troops in Iraq complain about troubled marriages as a result of long and multiple deployments to Iraq. While the pressures of being away from family is more prevalent for young soldiers, there has been recent affect on senior enlisted soldiers as well.

The Air Force is also reporting a 4.3% divorce rate this years. However, the Army has 100,000 more married troops than the Air Force. The Marines is reporting a 4% divorce rate that has remained steady from 2008 to 2009. While the civilian divorce rate in the USA was recently 3.4%, the total divorce rate for the U.S. military has increase from 3.4% to 3.6% in 2009.

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