Articles Posted in Custody/Time-Sharing

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A recent court of appeals decision put a screeching halt to a mother’s attempt to relocate her daughter from central Florida to Indiana. The 5th District Court of Appeal’s ruling affirmed a lower court’s decision that the move was not in the daughter’s best interests, concluding that the mother was motivated by a desire to maintain physical distance between the daughter and the father, and to block contact between the two.

This couple divorced in 2008 in California, and the court approved a marital settlement agreement that included a 50-50 time-sharing arrangement for the couple’s one daughter. The mother and the daughter soon moved to central Florida. In an effort to be closer to his daughter, the father moved to Orlando in the summer of 2010.

Just three months later, the mother abruptly relocated her family, including the daughter, to Indiana, where the mother’s husband had received a job offer. The father asked the court to order the return of his daughter. After a failed telephonic mediation, the mother petitioned the court to approve the relocation to Indiana.
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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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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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Florida is one of only a minority states with laws that allow rape victims to avoid potentially complicated and difficult child custody battles with their attackers in cases where the rape results in the birth of a child. However, that number could rise substantially if Congresswoman Debbie Wasserman Schultz has her way. The Florida Democrat led a bipartisan group that proposed the Rape Survivors Child Custody Act, which would use the lure of federal grant dollars to incentivize states to pass laws allowing rape victims to obtain sole custody over the children born as a result of their rapes, CBS Miami reports.

The bill, sponsored by Wasserman Schultz and Tom Marino, a Pennsylvania Republican, would make states eligible for federal grant funds flowing from two programs established under the Violence Against Women Act, but would limit that eligibility to those states with laws that permit rape victims to go to court to prevent potential custody battles with their rapists.

A thinkprogress.org report stated that estimates place the number of rape pregnancies at approximately 32,000 annually, with more than 10,000 of those victims electing to raise their children. At a press conference related to the bill, Shauna Prewitt, a rape victims’ rights advocate, explained that rapists can use a pregnancy or child as leverage against the victim’s reporting or pursing her attacker by threatening to pursue joint custody of the child if the woman participates in a criminal prosecution of the rape.
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Child custody matters are not only a serious matter of concern for parents but also to the state of Florida. Florida has a legal and moral obligation to ensure its minor citizens are safe. Child custody matters are best handled by legal professionals but may be faced by parents who have had reports filed against them or by parents who, during divorce proceedings, are not found fit for custody.Violating child custody orders may lead to severe civil and criminal penalties in Florida. On Sunday June 28, a missing child alert was called off for a mother who kidnapped her two daughters who were the subject of a child services investigation.

The department attempted to seize custody of the daughters, aged 7 and 15, after the court issued a dependency shelter order having found them at risk in their mother’s custody. Upon visiting the home, they discovered that the family had disappeared. After a two week search, an anonymous tip led investigators to North Carolina where the mother had kidnapped and transported the children.

Broward county is seeing an unfortunate increase in the number of children removed from homes due to allegations of abuse or neglect. The total number removed by the Broward Sheriff’s office has increased from just over 1,100 children last year to an astonishing 1,525 children in 2013 (up through June 30).

The CEO of the private firm contracted to oversee foster care in the county, ChildNet, identified the spike as being quite significant but cannot point to a clear cause. Some contributory evidence that will be further investigated is the increase in hotline calls reporting abuse, a new administration staff at the Sheriff’s Office, and recent heavily publicized stories of child deaths by the hands of parents previously investigated by child services.

According to the Florida Department of Children and Families, 12 children have died in 2013 due to neglect or abuse in the homes of parents having a history with the department.

The most recent death was a two year old in Homestead. His father is now being charged with second-degree murder. The Department’s records list a long history of Project SOS services having been offered to the father. Project SOS was a social services initiative through the police department that attempted to address homes suffering from abuse and neglect.

In most cases, child services are not eager to remove children from the homes of their parents unless it is clearly unsafe, and will instead try to solve more of the root causes of the abuse or neglect before taking further steps.
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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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This blog has previously discussed changes to Florida’s alimony laws (Senate Bill 718). Governor Scott vetoed this bill which included, as well, updates to Florida’s child custody laws.Specifically, child custody schedules were updated. Previously, there was never a codified mandate or guide that the custody break-down be 50/50 with both parents; rather judges just deemed what is right by a scattered amount of standards. Senate Bill 718 codifies a presumption that there be a 50/50 time sharing agreement between parents as, according to the legislature, it “is in the best interest of the child”. The bill does provide for basic and necessary exceptions or considerations to this presumption however.

Some of these considerations include: physical, mental and emotional safety of the child; distance makes the sharing too burdensome; a court order has prevented contact with one parent; a parent is incarcerated; domestic violence has occurred; clear evidence that extenuating circumstances require a modification of the schedule; or a parent does not wish to retain his/her level of custody.

Govenor Scott has admitted he does approve of “several forward looking elements of this bill” but he recognizes the importance alimony plays to many households. Currently, only four states have ended permanent alimony. Gov. Scott further criticized the Florida bill for its retroactive application which damaged ideas of fairness and “could result in unfair, unanticipated results.”

No Custody for Rapists

This April, the Florida legislature approved another more specific child custody bill which has been long overdue. The bill, SB 964, would prohibit a convicted rapist from acquiring child custody rights over the child conceived from the attack. The Florida House unanimously passed SB 964 with a vote of 115-0. The bill will be going to Governor Rick Scott and will take effect upon his expected signature.

A staff report in support of the bill reported that only 19 states terminate parental rights of convicted rapist for any child conceived through their crime. Now, with Florida having passed the bill, a startling 30 states (as well as the District of Columbia) remain which have no law on the books that bars a rapist from seeking visitation or custody rights. These states are as follows: Arizona, Arkansas, Colorado, Georgia, Hawaii, Idaho, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nebraska, New Hampshire, North Carolina, North Dakota, Ohio, Rhode Island, South Dakota, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia, and Wyoming.

Previously, rapists could seek custody of the child born from their attack. In some cases, this can even be used as a backdoor bargaining chip to discourage the victim from reporting the incident, testifying, or participating in sentencing hearings.
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On April 10, 2013, a couple accused of kidnapping their own children were arrested in Tampa after having been returned to the U.S. by Cuban authorities.The couple had officially lost custody of their two young boys on April 2. Last year, police found the couple at a hotel in Slidell, Louisiana, acting abnormally, claiming to be “contemplating their ultimate journey” and discussing the Armageddon. Upon further investigation, the couple was found to be in possession of weapons and narcotics. At that point the children, ages 2 and 4, were removed from the couple’s care and placed in foster care under CPS (Child Protective Services). The father spent the next week in jail and then, upon his release, visited the foster home his children were taken to and demanded them back at gunpoint.

The family’s flight to Cuba began after the Lousiana Family Court gave permanent custody of the boys to the father’s parents. The day after the ruling, the father went to his parents’ home in Tampa and kidnapped the children after tying up his own mother. The parents had their escape planned, and in the days leading up to the kidnapping, they purchased a 25-foot sailboat, the seller of which later tipped off authorities regarding the parents’ plan. The father, his wife, and the two boys then proceeded to sail to Cuba. The couple arrived at the Marina Hemingway, a facility slightly west of Havana.

Upon the parents’ arrival, Cuban authorities informed the U.S. State Department of the family’s presence on the island. After such information was passed on, “constant communication” was maintained between U.S. officials and the Cuban Foreign Ministry. This level of contact, concern, and communication was an important step for U.S.-Cuba relations as there does not exist any sort of extradition agreement between the countries.

Law enforcement officers retrieved the family and brought them back to the U.S., where the father is currently facing a slew of criminal charges, including two counts of kidnapping, child neglect, false imprisonment, interference with child custody, and others. The grandparents have expressed deep appreciation for how the operation was handled, and have welcomed the young boys back.

The Law Office of Sandy T. Fox can guide you through a safe and effective resolution of your child custody issues. Studies estimate there are nearly 1,000 within-family kidnappings per day in the U.S. In these cases, there is roughly a 50 percent chance that the kidnapping will be committed by the mother or father.

Parental kidnapping is a traumatic event for the children and the custodial guardians, often resulting in long term emotional harm for all parties involved, and in some instances physical harm. State legislation (Florida Statute 61.45 & the Florida Uniform Child Custody Jurisdiction and Enforcement Act) and federal legislation (the Parental Kidnapping Prevention Act of 1980 & the International Child Abduction Remedies Act) have extended the degree of preventive measures and applicable punishment for those engaging in parental kidnapping. It is important to operate through the family court for any custodial issues you wish to dispute, whether you feel you deserve a higher degree of custody, or you don’t believe the person with custody should have such responsibility.
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A Tampa mother is reportedly mourning the loss of her disabled child who died not long after the State of Florida took custody of the teenager. According to the 59-year-old mother, the last time she saw her daughter alive was 12 hours prior to her death when she was loaded into an ambulance bound for Miami. The screaming girl reportedly rode alone in the back of an ambulance because her mother was not allowed to accompany her on the five hour trip. The daughter allegedly died the following morning due to dehydration and cardiac arrest.

Ironically, child welfare authorities reportedly removed the daughter from her mother’s home over concerns regarding whether the single mother could properly care for the child. The mother suffers from six herniated discs in her back and a diagnosis of carpal tunnel syndrome in both wrists. Despite a judge’s order and her mother’s pleas, the child who suffered from cerebral palsy and a deadly seizure disorder was placed in state custody and institutionalized.

According to a Miami Herald report, the mother became the subject of investigation after a home health aide made what later turned out to be a false report regarding the care the daughter was receiving at home. The daughter was purportedly removed to Tampa General Hospital pending the outcome of the investigation. About one month before she died, Hillsborough Circuit Judge Vivian Corvo applauded the care her mother provided. Judge Corvo ordered that the daughter be returned home and round the clock in-home nursing care be provided using state Medicaid insurance. Still, the state allegedly refused to return the daughter to her mother’s care and instead transported her to a Miami nursing home.

The mother is one of the approximately 4.1 million disabled parents throughout America who too often struggle to retain custody of their children. Nationwide, removal rates due to a parent’s physical disability are reportedly about 13 percent. For psychiatric disabilities, the rate allegedly climbs as high as 80 percent. In fact, two-thirds of states allow a child to be removed from a parent’s home based solely on parental disability. Although Florida law does not allow termination of parental rights on disability grounds alone, the mother’s physical disability may have played a role in the state’s custody decision here.

Who will care for your kids following divorce is an emotional topic and many parents worry about losing custody of their children. Sadly, disabled parents are reportedly at an increased risk for just such an outcome. In Florida, a family law judge will take into account a number of statutory factors when considering any child custody and visitation agreement or dispute. If you have questions regarding child custody matters, you should contact a skilled family lawyer to discuss your situation.
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