Category Archives: Florida Law
In the state of Florida, the law assumes that when a mother is married and gives birth, the child´s father is the mother´s husband. On the other hand, when the mother is not married when the child is born, paternity must be established. This can be done whether voluntarily or through a court order.
First of all, it is important to understand the difference between Biological Father and a Legal Father. Identifying the Biological Father is a relatively easy process since it describes a man who fathers a child. However, the Legal Father is the man who has the responsibilities and rights of parenthood regarding the child. A Legal Father can be established through adoption, marriage, or a court ruling.
When the mother and the alleged father agree on who the child´s father is, both parties sign a “Voluntary Acknowledgement of Paternity”. This form states that the alleged father is in fact the child´s true legal father. With this document, the father gains all the legal rights and responsibilities of parenthood, which include visitation, having a paternal relationship with the child, active participation in raising the child, and providing support for him or her.
The acknowledgment becomes final and binding sixty days after it has been signed, after which neither party can revoke or set it aside. There could be an exception if some extreme pressure or force caused a party to sign the form.
Another way of establishing paternity is through marriage or legitimization. This means that when a mother of a child is married at the time of the child´s birth, the husband is determined as the legal father of the child.
Legitimization can happen when a couple gets married after the child is born, given that the husband is the biological father of the child.
If there is no voluntary acknowledgment, establishing paternity requires the filing of a court case to determine the issue. Under Florida law, any of the following persons or agencies can start the court process:
- The mother of the child.
- The alleged father (the man who believes he is the father of the child or who has been identified as such by other people).
- The child through a legal representative.
- The Florida Department of Revenue.
When the Florida Department of Revenue starts the court process it is for the sole purpose of making child support orders. This means that the court does not enter orders granting parenting time.
The court can find the alleged father to be the legal father through genetic testing or through evidence. This evidence can be gathered through testimonies or other evidence concerning the nature of the parties´ relationship with other people.
Additionally, if the alleged father is served with a summons directing him to appear in court and he fails to do so, the judge may enter a default judgment, which then finds the alleged father as the legal father.
When a paternity matter is started in court, it is important to know that the judge may also make orders for child support, parenting time, decision-making authority over the child, health insurance for the child, and payment of a party´s attorney´s fees and court costs.
Establishing paternity can be a complex process that must be handled by an experienced Family Law Attorney. This way, your rights and best interests will be safeguarded. Russell Spatz is an attorney with experience in handling all types of paternity matters. Give him a call at (305) 442-0200 to see how he can be of assistance in your paternity matter.
In the state of Florida many think the terms guardianship and conservatorship are interchangeable, but they in fact are very different. When a person is incapacitated or missing due to mental illness, disability, or injury, family members can petition the court for guardianship and/or conservatorship. But the rights appointed by the judge in these two situations are not the same.
Florida Statutes Chapter 744 states a guardianship will take over in making important decisions for an incapacitated person and look after their affairs. Guardians typically have more control than a conservator since there can be medical or personal affairs involved. The courts typically use the least restrictive option and a guardianship doesn’t need to be a permanent appointment. So, if the person is only temporarily incapacitated due to an injury, it can be revoked once the person is well.
In the state of Florida, under the Statutes Chapter 747 a conservatorship applies to a family member who has gone missing. The individual in question has to have been declared an absentee. This includes circumstances where someone may have gone missing due to amnesia, mental derangement, or other mental causes. Absentees also include armed forces member who were reported missing in action, were detained in a foreign country, or have become prisoners of war.
When someone is missing there are certain legal and financial affairs that must be tended to. This is when a petition for a conservatorship comes into place. To become a conservator, you must show proof that you hold an interest in the absentee’s estate if they passed away, and you must show you are dependent on support or maintenance from the absentee. When you petition for guardianship, you have to show the court that the family member is truly incapacitated and cannot handle their financial or personal affairs. The court will appoint an expert committee to examine the individual to ascertain whether he or she is incapacitated.
For a conservatorship this petition will list all the immediate family and next of kin. The petition will need to have specific details on what the circumstances were when the person went missing, and list reasons why you need to be appointed conservator, as well as the worth of the estate.
Whether you’re in need of a conservatorship or a guardianship, the assistance of a family lawyer will be incredibly beneficial, especially as this is likely an emotional time for you and your family. Russell Spatz has decades of experience and always puts his clients first. He’s available for a consultation today at (305) 442-0200.
No one gets married with the intention of ever having to file for divorce. We all want to believe in happily ever after, but unfortunately, life happens and people grow apart or circumstances happen that make it difficult to continue being married. If you and your partner are starting to grow restless and no longer feel happy with one another or any of the following appear to be hindering your relationship, then maybe it’s time to consider filing for divorce.
Cheating – When getting married you vow to stay loyal, but that doesn’t always happen. Infidelity, whether physical or emotional, in a marriage can cause unrepairable damage. While it‘s something that can be overcome, many marriages do not survive when a spouse cheats. This is the cause of 27% of divorces.
Lack of communication – Being married is all about compromise. In order to have a healthy marriage you have to be able to talk things out with your partner and find a resolution to issues that make both parties happy and comfortable. If you and your partner aren’t communicating and working with each other there’s a large chance your marriage won’t survive.
Loss of own identity – Your relationship with yourself is just as important as the one you build with your partner. Over the years, it’s easy to “lose yourself” and this feeling can lead to depression or anger that can consume ones marriage and lead to major problems and resentment.
Abuse – Abuse can come in many forms. Physical and emotional abuse from one spouse to another is a major factor in causes of divorce. Drug abuse also plays a factor in the ending of a marriage. If you are being abused or your spouse is abusing drugs or alcohol, and counseling isn’t able to help, then divorce may be the best option.
If any of these any of these resonate with you in terms of your marriage, it may be time to consider a divorce. When looking for legal counsel, you’ll want an attorney with experience and compassion. Russell Spatz is a dedicated family law attorney who always puts the needs and feelings of his clients first.
Schools are out and summer is here, meaning schedules are changing making more obstacles for divorced parents who are co-parenting. The last few months of this school year took place at home, causing a serious shift in scheduling, and may have made the transition into summer a bit easier. Regardless, having less of a daily structure and being on summer vacation means it’s time for those who are co-parenting to be a little more flexible and understanding with their ex when it comes to the children’s best interest.
In order to have the smoothest co-parenting summer possible I suggest keeping these things in mind.
1. Decide on holidays and major events early – There are certain parts of summer that are expected every year including holidays and any annual trips one or both parents may have planned. If your custody agreement doesn’t have specific rules for holidays, then this is something that should be discussed at the beginning of the season. Make sure to come up with a schedule that is feasible for the child – include logistics on transportation costs for things like summer camps or activities, etc.
2. Share a calendar – The best way to keep organized is with a calendar. Whether you’re on good terms with your child’s other parent or not, consider downloading an app that allows you both to share a calendar that keeps track of all events that involve your child. Apps like Family Wizard, 2Houses, or even your phone’s Google calendar make this task very easy to use. This will only work if both parents are dedicated enough to keep it updated. It’s an extra task, but it will help to keep organized through the summer leaving no questions for when or where the children will be.
3. Don’t try to compete with each other – It’s important to remember that parenting your child is not a competition. One may have a larger budget and might have big and flashy plans for the summer, but if that’s not what’s right for you, then don’t try to over do it. Keep in mind that the best memories aren’t always the most expensive one. Your child or children are going to remember specific moments and those aren’t going to be monetary or material.
Summer vacation is a special time for children. It’s their few months of freedom from school where they look forward to spending time with their friends and families. Remembering that your child’s happiness comes first is always a healthy first step to handling co-parenting. If you need assistance in setting up a custody agreement after separating with your spouse, the help of an experienced family law attorney like Russell Spatz could make a difference in making it as smooth of a process as possible.
In the last few weeks, our normal lives have come to a halt and we are facing a harsh and scary new reality. Schools, parks, stores, everything seems to be closing around us in the wake of the coronavirus outbreak. We are all being urged to stay home and keep to ourselves in order to help eliminate the spreading of this virus. Coronavirus is a major health concern around the world, and while it needs to be taken seriously, it’s important to find a calm way to explain it to your children.
How to Explain Coronavirus to Your Children
There’s a chance that your children have already heard about COVID-19 as it’s been in the news since January. Explain to your children that it’s like the flu, but can sometimes be more dangerous for those who are already sick or are elderly. Let them know that it’s not as common in children and by washing their hands often they can avoid it all together.
Make sure to listen to any questions or concerns that they may have. Try to be as honest as possible with them while still keeping calm. Everyone’s anxiety levels are high right now, and being stressed lowers our immune system, so it’s best to approach the subject calmly.
Take time to show them how to properly wash their hands for 20 seconds, using Happy Birthday or a favorite song of theirs to sing along to. Encourage your children to keep their hands off their faces and to drink plenty of water to stay hydrated.
How to Keep Children Entertained During Quarantine
While Florida isn’t on a mandatory quarantine order, we are encouraged to stay home as much as possible. Being at home is bound to lead to boredom and stir crazy children (and adults). During this time dust off those old board games and put them to use, set up a virtual play date using FaceTime with a best friend, read a book, start a new television show as a family. We often use the excuse that we’re too busy and don’t have the time to little projects. Use this time wisely and start that puzzle you’ve always wanted to do. Make dinner together as a family – pizza is always a fun interactive option. There’s always a silver lining. This is a great time to be able to slow down a bit and bond as a family.
Russell Spatz is a Miami based experienced family law attorney who always keeps his clients and their best interest at top of mind. If you or your family need to discuss any legal matters during this time, reach out to Russell Spatz at (305) 442-0200 to see how he can help.
New Supreme Court Ruling May Require Change to Florida Law
Calling for Warrants for Blood Draws in DUI Cases
A new case decided last month (April 17, 2013) by the Supreme Court of the United States, Missouri v. McNeely, promises to require revisions of current law in the State of Florida and may jeopardize future prosecutions for DUI that rely upon blood alcohol levels based upon analysis of blood draws.
In a previous ruling the Supreme Court, in Schmerber v. California, 384 U.S. 757 (1996), upheld a warrantless blood test of an individual arrested for DUI. The reason being that the officer might reasonably have believed he was confronted with an emergency, and delay of a blood draw threatened destruction of evidence.
The Court in 1966 pointed out that the testimony in the lower court indicated that the percentage of alcohol in an individual’s blood typically decreased by approximately 0.015 percent to 0.02 percent per hour once the alcohol has been fully absorbed. They went on to note that since an individual’s alcohol level gradually declines after he stops drinking, a significant delay in testing can negatively affect the probative value of the results. This factor was essential to holding in Schmerber that delay in securing a warrant would threaten the destruction of evidence.
However, in this new ruling, the Court held that the natural metabolization of alcohol in the blood stream does not present a per se exigent circumstance that will justify warrantless blood draws in all drunk driving cases. The Court further held that whether an exigency exists which would allow a warrantless blood draw in a DUI case, is an issue that must be determined on a case by case basis based upon the totality of circumstances.
Given the current state of the ability for police departments to communicate with the judiciary in order to secure warrants, which makes application for same in a short period of time not impracticable, it cannot be said that exigency is presented in all cases which thereby justify warrantless blood tests.
The court noted that in the 47 years since Schmerber was decided there is a more expeditious processing of warrant applications and well over the majority of the states allow police officers to apply for search warrants remotely through using telecommunications and email.
The Court therefore held that in drunk driving investigations the natural dissipation of alcohol in the blood stream does not constitute an exigency in every case to justify conducting a blood test without a warrant.
Impact on Florida’s Implied Consent Laws
It is difficult to predict all the consequences that this new decision will have on future cases involving motorists driving under the influence. They may be far-reaching; all 50 states have adopted implied consent laws in one form or another, requiring all operators of motor vehicles within their states to consent to blood alcohol content (BAC) testing if they’re arrested or detained on suspicion of a drunk driving offense.
Refusal to submit to a breath, urine, or blood test is admissible as evidence in DUI criminal proceedings in Florida, for example, and results in an automatic suspension of the driver license for one year. Under Florida’s implied consent law, the following is allowed:
Forceful Withdrawal of Blood: If necessary, blood may be withdrawn in DUI cases involving serious bodily injury or death by authorized medical personnel with the use of reasonable force by the arresting officer, even if the driver refuses.
Unconscious: Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition shall be deemed not to have withdrawn his consent to such test. A blood test may be administered whether or not such person is told that his failure to submit to such a blood test will result in the suspension of his privilege to operate a motor vehicle. (Florida Highway Safety and Motor Vehicles).
That may change with McNeely; in the state of Florida cases involving searches consisting of warrantless blood testing can now be attacked based upon unreasonable search and seizure. For example, people who consented to having their blood drawn could challenge the administration of the test by arguing their consent was not given voluntarily. A good criminal defense lawyer in Florida could challenge its implied consent laws for punishing citizens for exercising their constitutional right to refuse a search not authorized by warrant.
The new ruling suggests that when officers in drunk driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.
Florida Highway and Safety Motor Vehicles, “Florida DUI and Administrative Suspension Laws.”
Harmless Error Blog, “Missouri v. McNeely: Trouble for Implied Consent Laws?”, 22 April 2013.
I just received several emails from friends and acquaintances who want to know why Casey Anthony was found not guilty and “how could this happen”. Although I have taught criminal procedure and tried numerous murder cases, I am quite sure that my answer won’t satisfy most.
In the first place, I must give the caveat that I did not watch the proceedings from beginning to end nor did I get to review first hand all the exhibits and physical evidence. Obviously, the jury, made up of individuals who care about children was as emotionally ravaged by this case as anybody else. I therefore have to assume that the jury followed the court’s instructions regarding burden of proof and reasonable doubt and felt that although she may be guilty, she had not been proven guilty of first degree murder beyond and to the exclusion of every reasonable doubt.
Hundreds of years ago, our criminal justice system was founded upon the precept that in order to find an individual guilty they must be proven guilty beyond a reasonable doubt. Probable guilt, likely guilt, or being thought to be “more than likely guilty” was not enough. By saddling the State with this very high burden, it was of course, conceivable that in some instances guilty people would go free. But our founding fathers made the conscious decision that individual liberty and justice was so important in a free society and we valued our freedoms so highly, that we would require this higher burden since we would rather see 100 guilty people go free than have 1 innocent person spend a day in jail for a crime he or she did not commit.
If the crime was that of being a bad mother or despicable human being, or a selfish and self-centered person, the outcome may certainly have been different. However, as she was charged with first degree murder, the State had to prove beyond a reasonable doubt that her mother intentionally killed her. Based upon what I did view on television and in the papers, it was clearly evident that this essential element of the crime could not be proven beyond a reasonable doubt. No matter how hard the State tried to point to Casey’s despicable behavior, after the death.
The truth is, we don’t know how this child died, and although it may have made us feel better seeing the mother punished for her actions, it would not necessarily have been the right verdict. Of course, Casey Anthony will have to live with this for the rest of her life and I for one don’t believe that she has “gotten away” with anything. I am praying for her and her father and mother. I understand why people are upset but I also believe the Caylee is with her Father in Heaven and Casey’s punishment lies ahead of her and is in God’s hands.
In short “nobody really gets away with anything.”
Russell A. Spatz
Counselor and Attorney at Law
Miami – A federal grand jury in Miami returned a 16-count indictment charging Rodrigo Molina, 32, of Miami, and Marcos Macchione, 31, of Aventura, Fla., for their alleged involvement as money laundering service providers for a sophisticated international securities fraud organization, Assistant Attorney General Alice S. Fisher of the Criminal Division and U.S. Attorney R. Alexander Acosta of the Southern District of Florida announced.This indictment follows major law enforcement operations carried out on Feb. 25, 2008 that resulted in the arrests of Molina and Macchione in Florida as well as 18 subjects in Brazil. The Brazilian operation netted the alleged leader of this criminal organization, Doron Mukamal, as well as his partners, associates and employees. Also arrested in Brazil were the “doleiros,” or money launderers, that assisted the organization by providing a complicated maze of bank accounts that quickly hid money sent in by the victims. Molina and Macchione were allegedly responsible for the U.S. portion of the doleiro operations being managed out of Brazil.
“Scam artists who attempt to dupe investors by claiming to represent legitimate financial services will be aggressively pursued both in the U.S. and abroad,” said Assistant Attorney General Fisher. “I want to thank all of the domestic and international agencies for their diligent work in aggressively pursuing this case.”
This case involves an international criminal organization that utilized the U.S. securities market to scam foreign investors out of more than $50 million during the last three years. As the indictment alleges, this fraud organization victimized U.S. “micro cap” company investors worldwide using an operation that spanned North and South America. A team consisting of the Department’s Fraud Section, FBI, U.S. Postal Inspection Service, the Securities and Exchange Commission (SEC), the New Jersey Attorney General’s Office Bureau of Securities and Division of Criminal Justice, the Alabama Securities Commission, and the Brazilian Federal Police conducted a three-year international cooperative investigation that was responsible for dismantling the fraud.
New Jersey investigators became involved in 2005 when victims from around the world contacted New Jersey’s Bureau of Securities to report that a New Jersey securities broker had defrauded them. Heritage Financial of Trenton, N.J., one of the companies quickly determined by investigators to be completely fictitious, offered to purchase nearly worthless stock from investors by paying much more than the stocks were worth. Shortly before the stock transaction was supposed to take place, the fictitious broker would require the victim to pay some sort of advance fee. These fees were purported to pay for taxes, escrow payments or other services not actually required in legitimate transactions. Once these “fees” were wired into bank accounts, mostly located in Miami, the fictitious brokers simply abandoned the transaction. In many cases investors were further victimized when they contacted the fictitious broker to question what had happened to their money. On many occasions they were told that the broker had located warrants or the rights to purchase more shares held by the victims. These warrants were imaginary, but the “brokers” would offer to pay huge premiums to the investors for them. Again, lured by the promise of huge profits, the investors would remit large payments for additional fictitious fees.
The Brazilian defendants used well-designed Web sites to mislead their victims into believing that they were legitimate securities brokers. The perpetrators, in order to carry out their scheme, stole the identities of real U.S. broker dealers and created others that were fictitious. In many instances they even created false governmental entities that touted the legitimacy of the fictitious brokers. Additionally, voice over Internet Protocol (VoIP) telephone providers were utilized so that the fictitious brokers had U.S. phone numbers even though they were located in Brazil and other countries.
Since 2005 this fraud scheme has been responsible for the greatest number of victim complaints received by the SEC’s Office of Investor Education and Advocacy. To date, the investigative team has seized and/or frozen several million dollars through the investigation. Besides arresting the fraud organization head and managers, the Brazilian operation called “Operacao Pirita” raided an operating “boiler room” located in a Sao Paulo hotel full of telemarketing fraudsters actively carrying out the fraud. In addition to the arrests, the Brazilian Federal Police, with the assistance of personnel from the New Jersey Bureau of Securities and the Division of Criminal Justice, seized 17 guns, 17 vehicles, drugs, at least one home, and more than $1.5 million in cash and jewelry.
If convicted the defendants each face a maximum of 20 years imprisonment. The indictment also seeks criminal forfeiture of contents of several of the bank accounts used to facilitate the laundering of the fraud proceeds.
An indictment is merely a charge. Defendants are presumed innocent unless and until proven guilty beyond a reasonable doubt.
Trial Attorney Matthew Klecka of the Criminal Division’s Fraud Section will prosecute the Miami indictments. The investigation is being conducted by the FBI, U.S. Postal Inspection Service, New Jersey Bureau of Securities, New Jersey Division of Criminal Justice, and the SEC.
Visit us at www.spatzlawfirm.com
In a late afternoon ceremony on the Capitol Courtyard on March 11, Florida Governor Charlie Crist honored Justice Barbara J. Pariente as one of the three newest members to the Florida Women’s Hall of Fame. Justice Pariente joined Dr. Pallavi Patel, Tampa pediatrician, and Ileana Ros-Lehtinen, 18th District Congresswoman of Florida, as the three 2007-08 inductees named by the Florida Commission on the Status of Women. Justice Pariente joins Justice Rosemary Barkett and Justice Peggy Quince who entered the Hall of Fame in 1986 and 2007 respectively.
Justice Pariente thanked Governor Crist for the honor of being selected, saying, “I have received other awards in my lifetime, but this is the Academy Award of awards.” She continued by discussing her work, leading to this moment in time, indicating that her involvement with many high profile cases has been very significant.
Celebrated for her keen attention to family issues in her work, Justice Pariente concluded by saying, “I am convinced that some of the most complex and challenging cases in which we can make a difference are those involving children and families. So, I am very proud to be recognized for my constant advocacy for children in need who end up entangled in the legal system, because I subscribe to the notion that 100 years from now it will not make a difference what our bank account was or how many honors and awards we received but that the world will be better because we made a difference in the lives of children.”
Justice Pariente, of West Palm Beach and Tallahassee, is only the second woman to serve on Florida’s Supreme Court and as its Chief Justice from 2004-2006. Throughout a legal career begun in 1975, she has shown a passionate commitment to improving the lives of women, children, and families in Florida, especially those whose disadvantages in life have brought them into courts.
Since her appointment to the Court in 1997, she has championed drug courts, Florida’s nationally praised program to rehabilitate people who commit minor crimes because of substance abuse, rather than imposing the more expensive and less successful alternative of jail. She has been a driving force behind Florida’s Unified Family Courts, a judicial approach to help ensure that each family’s legal problems are managed comprehensively by a single judge or team.
In her career, Pariente has mentored school-age children, has encouraged mentoring programs, and has worked directly to help juvenile offenders. In 2003, she turned a personal tragedy – breast cancer – into a public victory by sharing her successful treatment with Florida and national media. During this period, she never missed a court hearing, even appearing wigless in cases that were widely broadcast. Pariente graduated fifth in her law school class at George Washington University in 1973 and immediately began a successful twenty-year legal career, first as a Florida federal district court law clerk, then as one of South Florida’s pioneering women trial attorneys. She is married to Judge Fred A. Hazouri of Florida’s Fourth District Court of Appeal and is a mother and grandmother.
Visit us at www.spatzlawfirm.com