Child Custody Archives • McNeal Legal, LLC

Tag Archive for: Child Custody

When can a child testify in court?

June 18, 2014/in Blog, Divorce and Family Law/by Kelly R McNeal

Clients often ask me how old a child has to be in order to testify in Florida. Generally speaking, I am dealing with family law cases. Parents have a difficult decision to make in even requesting that their children testify. Judges have the even more difficult decision of whether or not to allow it. In addition to the statutory factors listed below, a number of factors go into my argument (either for or against, whatever the case may be), including the information sought from the child (could that same information be obtained elsewhere), the relationship between the child and the parents (if there is alienation involved, it typically doesn’t make any sense to have a child testify, as one already knows what the child will say: “I love my mom/dad” versus “I hate my mom/dad”), the type of testimony (in cases of sexual or domestic violence, children’s interests become that much more important).

Florida Family Law Rule 12.407 provides: “No minor child shall be deposed or brought to a deposition, brought to court to appear as a witness or to attend a hearing, or subpoenaed to appear at a hearing without prior order of the court based on good cause shown unless in an emergency situation. This provision shall not apply to uncontested adoption proceedings.”

Florida Statute 61.13(3)(i) also provides a factor for the Court to consider in determining a parenting plan for minor children. It provides, in part: “Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to… The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.”

In Monteiro v. Monteiro, 55 So.3d 686 (3rd DCA 2011), the trial Court evaluated whether or not the children would be permitted to testify in camera (with the judge present without parties or witnesses) over the husband’s objection. There, the Court held: “In addition, the father’s request in this case for submission of the minor children to examination in the presence of counsel and/or parties, effectively superimposes his right to due process upon the best interests of the children. This is impermissible. The father’s request is particularly at odds with the truth-finding process where, as here, he is the subject of the minor children’s testimony. Thus, the only way to obtain the truth from the minor children is to conduct the interview outside the presence of the father. Clearly, the Florida Legislature has recognized that in situations such as the one before us today, the best interests of the minor children are paramount. As such, we find that the trial court’s decision was not a departure from the essential requirements of law. On remand, the father can request that a court reporter be present so that the children’s testimony is transcribed, thus permitting judicial review.”

Court have wide discretion in considering a party’s request for children to testify in a dissolution or time-sharing matter. As appellate courts have noted, the best interests of the minor children are paramount.

Does religion matter in a child custody case?

February 19, 2014/in Blog, Divorce and Family Law/by Kelly R McNeal

In establishing a parenting plan, courts look to the factors in Florida Statutes §61.13. A court’s determination is governed by what is in the child’s best interests.

61.13(3), in relevant part, provides: For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, which governs each parent’s relationship with his or her minor child and the relationship between each parent with regard to his or her minor child, the best interest of the child shall be the primary consideration. A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child. Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to:

The appellate court went on to note that, as with married parents who share diverse religious beliefs, the question of a child’s religion must be left to the parents even if they clash. A child’s religion is no proper business of judges. Id. at 1161. Clearly, a party would have to show the detrimental effects of a parties’ religion as it relates to their ability to parent the child or children. Also, as the appellate court notes, courts should be cautious in interfering with parents’ choice or religion, or their choice of religious instruction for their children.

Does sexual orientation (lesbian, gay, bisexual, transgender) matter in a child custody cases?

February 12, 2014/in Blog, Divorce and Family Law/by Kelly R McNeal

In establishing a parenting plan, courts look to the factors in Florida Statutes §61.13. A court’s determination is governed by what is in the child’s best interests.

(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(f) The moral fitness of the parents.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.

In Jacoby v. Jacoby, 763 So.2d 410 (Fla. 2d DCA 2000), the court was faced with issues of religion and the mother’s sexual orientation. Specifically, there was testimony about the children’s religious teachings and the mother’s sexual orientation. The trial court also made comments, in its ruling, that the community generally has problems with individuals who are not heterosexual. The Court held that, for a court to properly consider conduct such as Mrs. Jacoby’s sexual orientation on the issue of custody, the conduct must have a direct effect or impact upon the children. See Maradie v. Maradie, 680 So.2d 538 (Fla. 1st DCA 1996). “[T]he mere possibility of negative impact on the child is not enough.” Id. at 543. The connection between the conduct and the harm to the children must have an evidentiary basis; it cannot be assumed. But even if the court’s comments about the community’s beliefs and possible reactions were correct and supported by the evidence in this record, the law cannot give effect to private biases. See Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984); cf. Department of Health and Rehabilitative Services v. Cox, 627 So.2d 1210 (Fla. 2d DCA 1993) (stating that private biases against homosexuality are not a permissible rational basis to support statute banning homosexuals from adopting), approved in part, quashed in part, 656 So.2d 902 (Fla.1995). Moreover, even if the law were to permit consideration of the biases of others, and even if we were to accept the assumption that such would necessarily harm the children, the bias and ensuing harm would flow not from the fact that the children were living with a homosexual mother, but from the fact that she is a homosexual. See Conkel v. Conkel, 31 Ohio App.3d 169, 509 N.E.2d 983 (1987); M.P. v. S.P., 169 N.J.Super. 425, 404 A.2d 1256 (App.Div.1979). The appellate Court held that the circuit court’s reliance on perceived biases was an improper basis for a residential custody determination.

How Florida courts deal with adultery in divorce

October 23, 2013/in Blog, Divorce and Family Law/by Kelly R McNeal

My spouse is a cheater. I want to make him/her pay for this!

Well, first, you probably need to find another lawyer. If a person’s sole purpose in a divorce action is to “get back” at their partner, McNeal Legal, LLC might not be the right firm for you.

There are times when proving adultery IS relevant to a case, and certainly times when proving adultery is NOT relevant to a case.

Florida is a “no fault” divorce state. Neither party has to have a reason to get divorced, and the party filing need only state that there are “irreconcilable differences” or that the other party is mentally incompetent (legally speaking, not just that one party has this opinion of their spouse).

There are several instances where proving adultery can be very relevant to divorce proceedings, including the following:

1. An award of alimony. Florida Statutes §61.08(1) states, in part: “ The court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded.” Certainly, the judge can consider the adultery when determining alimony. How much or how little the judge considers is up to each individual judge, and the facts of each case.
2. Child custody or time sharing: Florida Statues §61.13(3)(f) states, that the Court, in deciding parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, the Court can consider the “moral fitness” of the parties. So if one parent can prove that the other parent’s adultery had or is reasonably likely to have an adverse impact on the child, the judge might limit that parent’s custody or visitation. Again, this is totally within the discretion of the trail judge.
3. Equitable Distribution: Florida statutes §61.075(1)(i) states, in part, that the Court, in in addition to all other remedies available to do equity between the parties, in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including: (i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition. So, if one party can prove that the other had spent funds on a paramour during the course of the marriage, those funds may form the basis for an unequal distribution of marital assets and/or liabilities.
In Smith v. Smith, 378 So.2d 11 (Fla. 3d DCA 1980), the Court found it was not a case in which an errant spouse destroyed a marriage and now wanted to claim benefits equal to those which would have been provided had it remained intact. The Court in Smith noted: “[E]vidence [of adultery may not] be employed merely to decrease or enhance an award by way of punishment for conduct of which the court may disapprove, when that conduct is not related to the equitable considerations with which dissolution courts should be concerned under our no fault law.”

As it relates to child custody or time sharing, Courts have found that the possibility of a negative impact is not sufficient. Jacoby v. Jacoby, 763 So.2d 410 (Fla. 2d DCA 2000). In determining a party’s moral fitness for purposes of custody, the trial court should focus on whether the parent’s conduct has had or is reasonably likely to have an adverse impact. Packard v. Packard, 697 So.2d 1292 (Fla. 1st DCA 1997). Although one parent has committed adultery, it may be in the child’s best interest for that parent to receive custody. Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). Adultery may or may not have a direct bearing on the welfare of a child of tender years. Id.; see also Farrow v. Farrow, 263 So.2d 588 (Fla. 2d DCA 1972)

While most people have the initial gut reaction to want their spouse to pay for the adultery, oftentimes, when people realize the cost associated with proving such claims versus the benefits, people tend to work more toward resolution than revenge.

The question for most people becomes an analysis of what is to gain from airing out the dirty laundry. Things that can possibly be gained from bringing forth an adultery claim as it relates to alimony or equitable distribution include additional funds from either (or not having to pay alimony or as much alimony), and more time with children in a time sharing plan.

The downsides to proving the adultery can include forever damaging the relationship with your ex-spouse (where children are involved), and possibly damaging the children, the expense associated with proving the adultery (oftentimes the use of a private investigator is required, which can get costly), and the difficulty of proving the adultery (many incidents of adultery involve hearsay testimony, which is not admissible; having eyewitnesses to the adultery, to the extent you would want to prove the adultery in order to alter the equitable distribution, alimony, or time sharing, are rare)