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.


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)

Child relocation

They’re my children, can’t I just move with them?

Well…maybe. Florida statutes §61.13001 describes what a parent must do to relocate from their current residence with their child (assuming, of course, one parent is relocating and the other parent is staying in the same city/town/county).

The statute defines relocation as: “a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing. The change of location must be at least 50 miles from that residence, and for at least 60 consecutive days not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of health care for the child.”
Child Relocation
Of course, the parties can agree on a new-time sharing schedule if one parent is relocating. If the parties come to an agreement, it should be in writing. The statute provides: “the parties shall seek ratification of the agreement by court order without the necessity of an evidentiary hearing.”

If the parties don’t agree, “a parent or other person seeking relocation must file a petition to relocate and serve it upon the other parent, and every other person entitled to access to or time-sharing with the child.” This begins the full blown battle over where the children should reside. The Court then considers whether the relocation is in the children’s best interest.

Noteworthy, the statute contains the following provision: “Relocating the child without complying with the requirements of this subsection subjects the party in violation to contempt and other proceedings to compel the return of the child and may be taken into account by the court in any initial or post-judgment action seeking a determination or modification of the parenting plan or the access or time-sharing schedule.”

I have seen relocation cases where one parent obtains a new job or transfer, and the other parent, though divorced, moves to the new location with the first parent and children. I have also seen relocation cases where one parent decides to move with the children, and never complies with the provisions of this statute. In any case, it is important to consult with a lawyer regarding your obligations under this statute and work toward a resolution that is best for your children and family.

Disputed Attorney's Fees

Disputed attorney’s fees

In cases where attorney’s fees are a disputed issue, each party’s attorney provides an Attorney’s Fee Affidavit, which represents his or her work on a particular case. I always find it interesting to compare other attorney’s affidavits with my own bills, to determine how other firms are billing their clients. In reviewing some of those bills, I located a case, Browne v. Costales, 579 So.2d 161 (Fla. 3d DCA 1991) where the Third District Court of Appeal wasn’t exactly happy with the billing practices of the lawyer:

“Appellee’s second attorney, the recipient of a $20,000 attorney fee award, did not keep time records because he relied on ‘unit billing.’ Appellee’s counsel admitted at oral argument that his apparently silver-tongued efforts as trial counsel secured no equitable distribution, no lump sum alimony, and no permanent or rehabilitative alimony for the wife in this one and one-half year marriage; the sole result which he obtained was $10,000 in temporary support monies.”
Silver Tongued
The Court explained that unit billing is a practice where the attorney bills a predetermined number of minutes for a given task. The Court found that the attorney’s practice of unit billing was unacceptable, and “serves to fuel the opprobrium felt for the legal profession.”

The Court went on to note that the attorney had “the effrontery to explain that his unit billing included the time necessary for him to fold the paper, stuff the envelopes, and seal them (no doubt with his silver tongue).”

The Court also cited to The Florida Bar v. Richardson, 574 So.2d 60 (Fla.1990) where the Florida Supreme Court suspended an attorney, finding “absolutely no justification” for unit billing, stating: Lawyers are officers of the court. The court is an instrument of society for the administration of justice. Justice should be administered economically, efficiently, and expeditiously. The attorney’s fee, is therefore a very important factor in the administration of justice, and if it is not determined with proper relation to that fact it results in a species of social malpractice that undermines the confidence of the public in the bench and bar. It does more than that; it brings the court into disrepute and destroys its power to perform adequately the function of its creation. The Florida Bar v. Richardson, 574 So.2d at 62 (quoting Baruch v. Giblin, 122 Fla. 59, 164 So. 831 (1935)).