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Blog-Relocation

Can I move to another city or state with my children?

Florida Statutes §61.13001 lists the factors a court considers when determining if one parent can move more than 50 miles from their current residence.  The factors for a court to consider include the following:

(7) NO PRESUMPTION; FACTORS TO DETERMINE CONTESTED RELOCATION.—A presumption in favor of or against a request to relocate with the child does not arise if a parent or other person seeks to relocate and the move will materially affect the current schedule of contact, access, and time-sharing with the non-relocating parent or other person. In reaching its decision regarding a proposed temporary or permanent relocation, the court shall evaluate all of the following:

(a) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent or other person proposing to relocate with the child and with the non-relocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life.

(b) The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.

(c) The feasibility of preserving the relationship between the non-relocating parent or other person and the child through Relocation
substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the non-relocating parent or other person; and the likelihood
of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court.

(d) The child’s preference, taking into consideration the age and maturity of the child.

(e) Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities.

(f) The reasons each parent or other person is seeking or opposing the relocation.

(g) The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child.

(h) That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations.

(i) The career and other opportunities available to the objecting parent or other person if the relocation occurs.

(j) A history of substance abuse or domestic violence as defined in §741.28 or which meets the criteria of §39.806(1)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.

(k) Any other factor affecting the best interest of the child or as set forth in §61.13.

 

Question that often arise are:

What facts and circumstances warrant a relocation?  What are some facts where the Court has denied a relocation?

Kelly R. McNeal can meet with you to discuss answers to these questions and the specific facts of your case to determine if relocation is a feasible option for you and your family.

Photos in this blog are courtesy of: wikimedia.org

Sexual Orientation Child Custody

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

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:

(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.
Sexual Orientation Child Custody
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.

Adultery

How Florida courts deal with adultery in divorce

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.”
Cheating Spouse
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)