Author Archives: The Spatz Law Firm Blog

Simple Ways to Make Divorce Easier on Your Kids

The fact of the matter is that divorce is never easy. Whenever there is a separation of two people, especially if there are kids involved, it will be a complicated process. It’s often hard for children to understand why their parents are no longer together, so explaining divorce to children can make it even harder. However, there are some things that parents can do to try and make the process of marital separation more tolerable. When it comes to your children, here are some simple ways to make divorce easier on your kids.

Keep in Touch Easily with Social Media

There may be some negative aspects to social media, but if used in the right way, especially during and after a divorce, it can be an easy and positive way for families to stay in touch. Unfortunately, after a separation, there may be long periods of time where one parent goes without seeing their child. Through social media, the non-custodial parent has an easy way to make sure they stay updated on the events in their child’s life.

Social media and texting also provide a simple way for parents to maintain consistent communication with their child when they are not around physically. By sending a text or social media message, a parent can show that they are there for the child without much effort or interference from the other parent. In the same way, social media and text conversations allow the child to have a direct line of communication with each parent without having to disclose all discussions to the other parent.

Don’t Argue in Front of the Kids

This may seem like a no-brainer, but in the heat of the moment, it may be easy just to start or continue an argument while your child is nearby. This is a huge mistake that can have lasting consequences on their emotional health and future relationships. Children are constant observers, and they are learning from their parents subconsciously each day. If their first and only role models are always fighting and angry, they will carry that sentiment with them throughout their lives.

Make it easier on your child or children by saving the arguments for times when you are alone with your ex-spouse, or go through an attorney to handle any legal or financial discussions.

Minimize Disruptions to Your Child’s Routine

In a time when your child’s whole life is changing, it’s important to maintain consistency wherever you can. This may mean ensuring that your child continues to participate in after-school activities or that you have a family dinner with your child each night. Whatever efforts you can make to ensure that your child has a consistent home life will go a long way in helping them get through the divorce.

Legitimize Feelings

Your child will go going through complicated feelings and emotions that they have never had before when there is a family separation. It’s important that you validate and legitimize your child’s feelings. They may not even understand why they are feeling sad or angry, but it’s important that you don’t tell them to “suck it up” or to get over the fact that they are losing a parent in the home. Divorce can be an extremely traumatic event in a child’s life, and it’s essential for them to have the emotional support of both parents.

Get Help

Divorce is hard on everyone, so it’s important that you, as parents, get the help you need to handle your new life in an emotionally healthy way. It’s hard to take care of someone else if you are not taking care of your own emotional needs, so seek professional help if you need to. If you feel that your child would benefit from therapy with or without you, this is also a positive way to help your child handle the internal changes that occur with divorce.

Any time there is a familial separation, you should contact an experienced family law attorney. Your attorney can help you navigate the legal complexities of divorce so that you can focus on taking care of your children and home life.

 

References:

One Plus of Texting, Social Media: Divorce Made Easier on Kids. (n.d.). Retrieved from https://www.usnews.com/news/health-news/articles/2019-02-26/one-plus-of-texting-social-media-divorce-made-easier-on-kids

Lyness, D. (Ed.). (2015, January). Helping Your Child Through a Divorce (for Parents). Retrieved from https://kidshealth.org/en/parents/help-child-divorce.html

 

 

 

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Preparing for Spring and Summer Travel During or After Divorce

Taking family vacations during the spring and summer can become a bit more complicated when a couple is going through a divorce. No longer are you planning travel as a whole family, but one parent or the other wants to take the kids out of town, or even out of the country without the other parent participating. This scenario can become even more complicated when you add in one parent’s new significant other or spouse as the family further separates and prepares for travel during or after a divorce.

Many times, parents become territorial over their children following a separation, and children, unfortunately, become a pawn in a game the parents play against each other. This can be detrimental to the goals of everyone involved, but most importantly to the emotional health of the child. Therefore, it’s essential that parents work out their travel arrangements ahead of time, or at least don’t involve the children in any post-divorce dispute.

When preparing for spring and summer travel arrangements during or after divorce, here are some things to consider.

Custody Arrangements

When going through a divorce with children, parents must decide on a custody arrangement. This means that parents either share custody, or one parent has primary custody while the other has visitation rights or a certain percentage of custody. Through a parenting plan, couples must decide how they will organize the care of the children after the divorce is final. Often, this parenting plan will include information on which parents are allowed custody during certain holidays or school breaks. It’s important that both parents involved abide by the restrictions of the parenting plan and custody agreement to avoid any additional legal issues.

If parents cannot agree on which vacation times are assigned to each parent, a judge may have to be the one who decides based on the custody arrangements. Therefore, it’s important that all parents who are going through a divorce consult with an attorney to understand what rights they have when determining custody and vacation time with their kids throughout the year.

Spring and Summer Travel During or After Divorce

Parents should always consult with their custody agreement and the other parent before traveling anywhere with their child during or after divorce, but this is even more important when there is international travel involved. Many parents may find restrictions in travel allowances, and each parent must always abide by the agreement set in place. Additionally, any international travel may require both parents to sign off on documentation, and therefore, both parents must agree to the travel.

The primary custodial parent can ban travel with the other parent and child, which may require the traveling parent to file a motion with the courts. This potential threat to future travel for a parent further highlights the importance of having a qualified family attorney on your side who can help you understand what rights you are entitled to as a parent.

In any situation when a parent is considering travel with the child, the child’s needs and safety should come first. If the child has other obligations at home, is ill, or has work, school, or social engagements, it’s important that the non-custodial parent honor those obligations and not force the child into traveling just to prove a point to the other parent. The child should not be used as a way to assert power or get back at a former spouse. Divorce is not a game to be won, and each parent should absolutely place a priority on the wishes of the child.

If you are going through a divorce and wish to travel with your child this spring or summer, consider obtaining a family attorney to help you navigate any intricacies in your custody agreement or parenting plan. It’s important that there is open dialogue and agreement between former spouses, but it is also essential that you understand your rights as a parent.

 

References:

Retrieved from https://www.hg.org/legal-articles/travel-restrictions-for-parents-and-child-after-a-divorce-47485

Retrieved from https://thespatzlawfirm.wordpress.com/?s=travel

 

A Father’s Custody Rights During Divorce

fathers rights during divorce in florida

Losing the custody of a child can be the most devastating time in someone’s life. Having time with both parent important for the mental and emotional growth of a child, and also contributes to family happiness. When a family goes through a divorce, everyone loses, but many times fathers lose more than mothers when it comes to having an active role in their child’s life. This may be partly due to a father’s lack of understanding of the law, or fear of going to court to fight for equal custody of their child.

Equal Rights

Fathers should know that during a divorce they have the same legal rights to the child as the mother does, meaning they have equal rights to custody of the child. Each parent has equal standing under the law until there is a signed legal document containing the custody agreement, or the judge hands down his or her opinion on custody. However, if a father does not know this and gives up his full custody rights, he may lose them before he had the opportunity to fight for them.

Equal rights means that if the mother takes the children away from the father, he has just as much right to bring them home. He also has the right to know what is going on with the children at school or at the doctor’s office. Until there is a signed custody agreement, both parents have equality when it comes to matters of the child.

Fear of Fighting

There may be a lot of fighting during a divorce about everything from the family home to special heirlooms. Fathers may feel that they don’t want to drag the subject of custody through the courts for fear of eventually losing out to the mother. Therefore, many fathers may even allow the mother to dictate when he can see the child before a court-ordered custody agreement is in place. This behavior can be detrimental to a father’s ability to gain custody because the longer that a father allows his ex wife to dictate the child’s schedule, the more he may lose favor in the courts, which is why it’s very important for fathers to know that they have equal rights.

Custody and the Courts

According to divorcepeers.com, many custody agreements are decided without ever going to court, and most of them are in favor of the mother. Meaning, there are many men who are giving up their rights before giving themselves a fighting chance.

It’s important that any father who is going through a divorce hire a family law attorney who will fight for his equal rights for custody. Fathers have a right, and arguably an obligation to fight to be a part of their children’s lives on a consistent basis.

If you are a man with children who is going through a divorce, do not let your ex-wife dictate when you can see your children before a custody agreement is signed. Just because someone you know was not granted equal custody by the courts, it does not mean that you will not be given equal custody. Don’t agree to any custody document without consulting with an attorney and fighting for your right to be in your child’s life.

In the end, the man goal is to do what is best for the child. If you believe that you at risk of losing you parental rights during a divorce, contact me to learn more about how you can remain in your child’s life.

References:

Meyer, C. (n.d.). What Custody Rights Do Fathers Have? Retrieved from https://www.liveabout.com/a-fathers-legal-rights-to-child-custody-before-and-during-divorce-1103351

 

Will Child Support be Enforced if a Parent Goes to Jail or Loses a Job?

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The issues of divorce or separation and child support can be extremely touchy for many reasons. When couples with children separate, the consequences can be tumultuous. One of the consequences may be that one parent must pay child support to another parent, which should go solely to the care of the child.

How is child support calculated?

In the state of Florida, child support is taken very seriously. The courts make a decision on how much one non-custodial parent must pay the custodial parent in order to support the needs of the child. This decision is based on several factors including the income of both parents and the healthcare and child care needs of the child or children, as well as the standard needs of the child. If a parent is voluntarily not working, then a salary will be assigned to him or her based on the average salary of their location at that time. One parent may be required to pay child support to the other even if the custody arrangement is 50-50.

Changes in Employment Status or Incarceration

In the event that a parent who is paying child support loses his or her job, there are several things that can happen. Unemployment does not mean that the parent is relieved of his or her child support obligation. If a parent loses his or her job, he or she should notify the child support enforcement agency immediately. The unemployed parent should then apply for unemployment benefits in the state, if he or she qualifies. Through the unemployment benefits, the parent may have the child support automatically deducted.

If a parent is unable to find employment, he or she must continue to actively search for jobs, and it may be possible to request a reduction of child support or a modification. However, it is up to a judge to decide any changes in child support, and the parent must continue to pay as required in the original agreement until the courts approve a change. Once employment is re-established, the parent may have an increase in their payment amount in order to cover any missed payments during unemployment.

In the unfortunate event that a parent is incarcerated while he or she owes child support, that parent is still obligated to pay. He or she must contact the child support enforcement agency as well, and may also request a modification in payments. Once he or she is released from their sentence, he or she must notify the courts and resume regular payments as established by the courts.

Any time there is a change in financial status, it is possible that child support payments can be modified, but the courts must approve the modification in order for it to be legal.

Child Support Payment is Critical

Any time that a parent can pay child support; he or she should always pay based on the court order. It’s important to note that the consequences of not paying child support can be severe.  A delinquent parent can be punished by anything from the suspension of a driver’s license, to passport denial, or even jail or prison time.

If you or anyone you know is going through a divorce or needs assistance with issues of child support, it’s important to contact an experienced family law attorney as soon as possible. Your attorney can advise you on the best course of action for your case.

References:

Child Support Amounts. (n.d.). Retrieved from http://floridarevenue.com/childsupport/child_support_amounts/Pages/child_support_amounts.aspx

Child Support Resources. (n.d.). Retrieved from https://thespatzlawfirm.wordpress.com/?s=child support

 

 

 

Mediation in Family Law Cases

closed up photo of man in black blazer facing tablet

Photo by rawpixel.com on Pexels.com

Anytime there is a dispute within a family, whether it has to do with a divorce or child custody issues, emotions can be high, and it can be difficult to come to an agreement that works for each party. Many times, this is when the courts get involved. Family members may have to present to a judge, and in some cases, may be subject to the decision of a judge or jury.

However, there is one way that disputes can be resolved that gives more decision-making power back to the people who are having the conflict. If conflicting parties are ordered to or choose to go to mediation, it is possible to settle a family dispute outside of the courtroom.

What is Mediation?

Mediation is a way for people to discuss their dispute in the presence of an impartial party. In certain cases mediation is court-ordered while in other cases the two parties can choose to go to mediation. The neutral mediator is often chosen by the courts in issues of family law. He or she must be certified by the Florida Supreme Court, but is not allowed to give legal advice, or provide therapy or counseling. The mediator may help the discussion along by providing ideas of ways that the disputing parties can come to an agreement.

Whenever there are issues involving the family, it may be difficult for opposite parties to operate without being emotional, and it can often be hard for each person to see the issue any other way. A mediator’s job is to spark ideas that may lead to an ultimate agreement, or simply the agreement that a mutually satisfying resolution cannot be made.

Once there is an agreement in mediation, both parties will be asked to sign a document that explains the details of the agreement, which becomes a contract. At this point, the terms of the contract are legally binding and must be followed by all parties involved. If an agreement cannot be made, then the issue may be sent back to the courts for a judge or jury to ultimately decide.

Benefits of Mediation

Mediation is a way to keep a dispute out of the courts, and may save time and money. It is an opportunity to resolve conflict with an impartial person who can offer up suggestions that may not have been considered by either party. Additionally, the mediator can help overcome communication obstacles or emotional barriers that have stalled the issue from being resolved or moving forward. He or she can assist with listening and help each party stay focused on the real issues that need to be discussed

Perhaps the biggest benefit to mediation is that it keeps the decision-making power with the parties involved in the dispute as opposed to a judge or jury. An agreement established in mediation is one that is created by the people who will be affected the most by any terms, and therefore, it may be appealing to some to have the power to make that ultimate decision.

Mediations are also private and confidential, which is different than public hearings that wind up on the record. There are no judges or juries involved in the mediation process, and attorneys are not required, but advised.

Tips for a Successful Mediation

Any time that you will be going to mediation, you should absolutely consult the advice of a family law attorney. Your attorney will be able to help you understand what terms would be most beneficial to you.

Make sure you are prepared and arrive on time. If you are ill prepared for the mediation, you may end up agreeing to something that does not work in your favor.

It’s important to also arrange for childcare if needed. Children are often not allowed in the mediation room.

Mediation in family law cases may last an hour or several days, depending on the time it takes both parties to agree on terms to a resolution. In the event that you are going to mediation or feel that you may need to in order to resolve a legal conflict, contact an experienced family law attorney who can properly advise you through the mediation process. The Spatz Law Firm can be reached at (305) 442-0200.

References

Mediation in Florida. (n.d.). Retrieved December 6, 2018, from https://www.flcourts.org/Resources-Services/Alternative-Dispute-Resolution/Mediation-in-Florida

Tips for Co-Parenting During the Holidays

After a divorce, co-parenting your children can still create many challenges throughout the year, but these may be significantly magnified as the holidays approach. Between events and gatherings with grandparents, aunts, uncles, and friends, you and your former spouse may be competing for precious time with your little ones.

It’s important to always follow the parenting plan established over the course of your divorce in order to avoid any major issues that could further damage the family, but in addition to that, here are a few more tips for co-parenting during the holidays.

Prioritize Your Kids

Never forget whose wellbeing is most important to consider, despite what happened with your former spouse. Make sure you are considering your children with each decision you make year-round, but especially during the holidays, which are supposed to be a fun and enchanting time.

You may feel the need to pull your kids in many different directions to visit family in the limited amount of time that you have together, but this may not serve your children well. Kids may become exhausted and not enjoy quality time if you are not taking their needs into consideration. Remember, this is a time for making memories, not for running your children into the ground and creating resentment for holiday functions. If your kids need a break, think about how you can incorporate that into the festivities.

Coordinate Gifts

If you and your spouse coordinate how you will handle gifts, you can limit the need to one-up each other each year. Decide on a budget, and make sure you aren’t getting the same gifts on your kids’ lists. Your children will be happier in the long run if both parents share the gift-giving duties equally as opposed to one outdoing the other.

Make Plans, But Be Patient

As stated earlier, it’s important to always follow the parenting plan set by the court when it comes to holiday time with your kids, but even more than that, make sure you have a plan for the time spent together. If there are extra activities or events that you would like for your child to attend, make arrangements with your ex to ensure that each parent is getting equal time.

Additionally, be patient. The holidays can be busy and stressful, especially if there is a lot of back-and-forth. Try to let the small things go, and remember that the most important thing is the experience of your child.

Never Argue in Front of the Kids

Though there may be disagreements from time to time, keep your arguing to a minimum and out of range of the children. Divorce is hard enough on kids, but repeated arguments between parents can be internalized by your children and cause them much distress throughout their lives. Consider settling disagreements after the kids go to bed or over email when decisions can be placed in writing in order to deter future arguments or misunderstandings.

Don’t Give Up on Self-Care

If you can’t take care of yourself, it’s very difficult to take care of others. Therefore, it’s important that you take some time to enjoy the holiday season as well. When the kids are with your ex, take time to relax, spend time with friends and family, and ensure that you are both physically and emotionally healthy. This will create a more positive atmosphere for the whole family and keep tensions to a minimum when the children are around.

In the event of a separation or divorce, it’s important to contact an experienced family attorney. Your attorney will help you through the process of creating a parenting plan and custody schedule that is beneficial for the whole family.

 

References:

Conklin-Danao, D. (2017, November 23). Co-Parenting During the Holidays: 5 Tips to Follow. Retrieved from https://www.divorcemag.com/blog/co-parenting-during-the-holidays-tips-to-follow/

 

Equitable Distribution at the Dissolution of Marriage in Florida

closed up photo of man in black blazer facing tablet

Photo by rawpixel.com on Pexels.com

Divorce is always a hard topic. Even if there are not children involved in the marriage, spouses must divide their belongings and assets earned during the marriage as they part ways.

In the state of Florida, we have what is called an “Equitable Distribution” of assets and liabilities acquired during the marriage. This basically means that any marital property will be equally distributed after a divorce. These include assets acquired jointly by the spouses during the marriage; enhancements of non-marital property due to the efforts of a spouse; jointly titled property, even if it was acquired as non-marital property; gifts from one spouse to another during the marriage; and joint bank accounts.

Just as assets are divided, so must liabilities.  A marriage between two people can have many benefits and successes, but also comes with risk and sometimes failures. Equitable Distribution covers both sides.

The Process of Dividing Through Divorce

During the divorce process, the first consideration is always the dependent children, if there are any. The court will handle issues of custody and child support prior to the equitable distribution of property. After the children are taken care of, the court will award each party their non-marital property, or items that were acquired before the spouses were legally married. However, it’s important to note that non-marital property can become marital property, as in the example of a spouse’s name being added to the title of a property owned by the other spouse before the marriage.

An example of non-marital property could be a personal bank account that is only in one spouse’s name that was opened prior to the marriage and not used for marital expenses.

The equitable distribution of properties acquired during the marriage will follow the non-marital assets. After the equitable distribution of property, the court will determine alimony, if any is awarded.

What Does the Court Consider?

According to Chapter 61 of Florida Statutes, which discusses equitable distribution. The following items are considered by the court when dividing the marital assets and liabilities. Some items may be awarded in a larger percentage to one spouse over another depending on “competent and substantial evidence” of the lawyer of that spouse.

(a)       The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.

(b)      The economic circumstances of the parties.

(c)       The duration of the marriage.

(d)      Any interruption of personal careers or educational opportunities of either party.

(e)       The contribution of one spouse to the personal career or educational opportunity of the other spouse.

(f)       The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.

(g)       The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.

(h)      The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.

(i)        The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within two years prior to the filing of the petition.

(j)        Any other factors necessary to do equity and justice between the parties.

In an amicable divorce, both parties will sign a “Marriage Settlement Agreement” (MSA), which will lay out exactly how everything will be divided after the dissolution of the marriage. However, in many cases, this process will be handled in mediation or by a judge.

Courts will be as equal as possible when dividing assets and liabilities at the end of a marriage, but a competent family attorney may be able to help a spouse recover exactly what he or she is owed. If you are facing a divorce, contact a family attorney as soon as possible in order to assist you through the distribution of property earned over the course of your marriage. The Spatz Law Firm is here to answer your questions. Please give us a call at 305-442-0200.

References:

A Seven-Step Analysis of Equitable Distribution in Florida Part 2: Distributing Marital Property. (n.d.). Retrieved from https://www.floridabar.org/news/tfb-journal/?durl=/DIVCOM/JN/jnjournal01.nsf/Articles/8323D0F2AB6652FB85256ADB005D627A

Equitable Distribution in Florida Dissolution of Marriage – Florida Divorce Source. (n.d.). Retrieved from https://www.divorcesource.com/ds/florida/equitable-distribution-in-florida-dissolution-of-marriage-3703.shtml

 

The Role of Foster Parents in Florida

Foster parents in Florida

In an unfortunate event that happened in southwest Miami-Dade this year, a foster mother was shot in her home by the biological parents of the children in her care. The biological mother then took the children to her own home, where she was later arrested. The foster mother was shot because she refused to give the children back to their biological mother when the mother demanded them, presumably in order to protect the children. Due to the arrest record of the biological mother, who had spent time in prison for child abuse and was charged again with child neglect, the children had been put into the custody of the Department of Children and Families for their own safety and well-being.

Situations like these often leave people wondering, what rights do foster parents have?

Basics of Foster Care

Children who grow up in foster care often have tough childhoods where they have moved around between their own home and the home of foster parents, and sometimes they are placed with several different foster parents. However, the idea behind foster homes is to provide the child with a more stable and nurturing environment than what the biological parents can provide.

  1. Foster care is meant to be temporary.  It often comes to an end when the child is either adopted, reunited with his or her biological parents, or turns 18. Foster parents may initiate a termination of parental rights against the biological parents, but this is a rare situation. Usually the foster parent keeps the child until the state deems that the biological parent is fit for custody of the child.
  2. Foster parents must be emotionally and financially committed. In order to be a foster parent, a person must be completely committed to the loving care of a child that is not their own. Fostering a child is not a paid position, and all though foster parents are given a small stipend to help with food and clothing for the child, the parent must be able to financially support their own family and needs
  3. .Foster parents have to meet certain criteria. All foster parents consent to a criminal and child abuse registry check, as well as health and home inspections. They are responsible for regular communication with the caseworker assigned to the child and may be required to work with the state on the reunification visits with biological parents.
  4. Foster parents have the same responsibilities as any other parent. Foster parents do everything that biological parents do, including enroll the child in school, take the child to medical and dental appointments, and attend any meetings related to the child’s well-being or foster status. In essence, anyone who commits to being a foster parent is taking over the role of the parent of the child with all its responsibilities.

Deciding to foster a child is a big decision that should not be taken lightly. Anyone who chooses to take in a foster child should be prepared to be fully committed to the well-being of the child in his or her care. Some foster parents may choose to apply for adoption of the child in their care if that becomes an option, though it is not required, and it is not a guarantee.

If you are involved in a situation that may require children to be placed in foster care, you should contact a reliable family law attorney. There are rights and obligations on the side of the parents as well as the state, and an attorney can assist you through the process.

 

References:

Batchelor, A., Burke, P., & Anwer, S. (2018, August 31). Foster mother shot, 2 children taken from home in southwest Miami-Dade. Retrieved from https://www.local10.com/news/crime/foster-mother-shot-2-children-taken-from-home-in-southwest-miami-dade

Trudeau, J. (2010, April 08). Foster Parent Rights in Florida. Retrieved from https://www.avvo.com/legal-guides/ugc/foster-parent-rights-in-florida

 

Who Can Become A Foster Parent? (1970, September 21). Retrieved from http://www.myflfamilies.com/service-programs/foster-care/who-can-become

 

FAQ. (n.d.). Retrieved from http://www.familiesfirstfl.com/about-us/faq/

 

 

Legal Guardianship for Adults

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Most adults are responsible for themselves when it comes to legal matters. Once you are a legal adult, you can make decisions based on the law in cases of money or property without someone else making those decisions for you. However, if an adult in the state of Florida becomes incapacitated due to injury or illness, there are measures set in place to ensure that someone will become responsible for the legal rights of the incapacitated person. In Florida, a guardianship is a legal proceeding where someone is appointed to make decisions and handle the legal matters of a person who becomes incapacitated, otherwise known as a “ward.”

How & Why is a Guardian Appointed?

If an adult becomes incapacitated, that means that he or she has been judicially determined to lack the capacity to manage their property, legal matters, and issues related to health and safety. A court can determine that someone is entirely or partially incapacitated depending on the findings of an expert committee.

Anyone can file a petition to the court stating that the incapacitation of another deems him or her eligible for a legal guardian, but it is up to the court to decide and enforce guardianship. Once a petition has been filed, a committee of three expert members is formed to review the case of the potential ward, which includes a physical, mental, and functional assessment. This committee is usually made up of two physicians and another expert in the condition of the person in question. The committee will submit a report to the court with these findings related to the capacity of the individual.

After the report is presented to the court, a judge will decide if a person is wholly or partially incapacitated, if at all, based on the factual evidence discovered by the committee. If someone is deemed to be in full capacity of him or herself, then the judge will throw out the petition for guardianship.

Who Can Be a Guardian?

Any adult resident in the state of Florida and some family members outside of the state may be appointed guardian of a ward as long as they have not been convicted of a felony, and are fully capable of handling the duties of being a guardian. A nonprofit entity may be granted guardianship in certain situations, and a bank trust can be appointed guardian of an individual’s property.

What Does a Guardian Do?

Ultimately, the court will decide what the ward is incapable of doing and assign the rights and responsibilities to the guardian. A guardian will be required to report regularly on the property and health of the ward. He or she will also be responsible for the medical, mental, and personal care of the ward, as well as determining the best place for the ward to live depending on the requirements of the court.

A guardianship does not have to be a permanent arrangement, as some wards may recover and become capable of exercising their own rights after some time. In this case, the court would conduct another assessment to determine whether the ward has recovered from their incapacitation and release them from the guardianship if there is a full recovery.

If a guardianship is petitioned or necessary, it’s important to hire an attorney who is experienced in the area of family law and guardianships. The guardian is also required to have representation by an attorney throughout the process. In legal documentation, the person who becomes the ward can also designate their preferred guardian before an incapacitating event.

References:

Consumer Pamphlet: What Is Guardianship? – The Florida Bar. (n.d.). Retrieved from https://www.floridabar.org/public/consumer/pamphlet030/#WHAT IS A GUARDIANSHIP?

A Recent Case Questions Whether Florida Children Can Have Three Parents

Florida paternity family law

We all know how important the presence of a father is in a child’s life, especially during critical development years. Unfortunately, with the rate of divorce in this country, many children grow up without a steady father figure in the home.

In a compelling case in Florida, one girl is caught in a battle between two men who are vying to be her legal father. One man is the biological father, and the other is the man married to her mother. Now, the case is highlighting a law that says a child can only have two legal parents. However, what if there are three who claim her?

Can there be three legal parents?

Florida law says that a child born into a marriage legally belongs to the husband and wife as the child’s father and mother. However, this doesn’t necessarily take into account the fact that the child may have a separate biological father.

In a recent case, one biological father is fighting in court for the right to have shared custody and parenting rights for his biological daughter who legally belongs to another man.

Legal parents are the ones who have the right to make decisions for the child, and in this case, the biological father is not considered the child’s legal father.

Two lower courts have issued entirely different rulings, in this case, one saying that the biological dad should have some rights, and the other upholding the legal father’s rights. Several people involved with the case have expressed the need for the Florida legislature to modernize the laws surrounding legal parents and paternity. Now, the case heads to the Florida Supreme Court.

Florida Paternity Law

In the state of Florida, if a woman is not married when she gives birth, paternity must be established either voluntarily or by court order. If the mother and father agree on paternity, they may sign a “Voluntary Acknowledgement of Paternity” form, which becomes final 60 days after it is signed, at which time, neither parent can revoke it.  The only way this document can be revoked is if either parent can prove in court that it was fraudulently signed, or that extreme force was used to coerce one of the parents to sign.

The following individuals can start the court process to establish paternity: the child’s mother, the “alleged” father, the child through a legal representative, or the Florida Department of Child Services.

Establishing paternity is important not only because every child should have a father in his or her life if possible, but acknowledging a legal father places responsibility on the parents to ensure that the child is taken care of as he or she grows. With paternity established, a judge may make orders for items such as child support and health insurance for the child, how parents should establish parenting time and decision-making authority over the child.

In any situation where paternity is in question or is a matter for the courts, it can be difficult for any family, but especially for the child involved. If you are involved in issues of paternity, it’s essential to contact a qualified family law attorney who can guide you through the court system.

References:

Vasilinda, M. (n.d.). Should Florida children be allowed to have three legal parents? Retrieved from http://www.wjhg.com/content/news/Should-Florida-children-be-allowed-to-have-three-legal-prents-482133051.html

 

Nolo. (2014, August 14). Paternity in Florida. Retrieved from https://www.divorcenet.com/resources/paternity-florida.html