Florida Family Lawyer Blog

The Fifth District Court of Appeals in Florida - the appeals court covering the north/central part of the State, recently decided T.M.H. v. D.M.T, 79 So. 3d 787 (Fla. 5th D.C.A., December 23, 2011), a case dealing with the parental rights of lesbian partners. In this case the partners decided to have a child together - one partner, TMH's egg was fertilized and implanted by in-vitro fertilization in DMT. The child was born in 2004; the parties lived together for approximately 2 ½ years and raised their child together, and separated in 2006, but continued co-parenting for another 1 ½ years. The parents' relationship deteriorated, and DMT moved out of the country and cut off TMH's contact with the child. The Court described the case as a case of "first impression", i.e. an issue that had not been decided yet by Florida's appellate courts, and ruled that both parents - both the birth mother and biological mother, had constitutionally protected rights as parents.

The key issue in the TMH case involved the rights of the "biological" mother -- TMH, who was not the birth mother, because the embryo was implanted in DMT who gave birth to the child. DMT, through her attorney, argued that a Florida Statute (F.S. 742.14) that provides for an egg or sperm donor losing or waiving their maternal or paternal rights, applied to TMH and meant that as an egg "donor" she had waived and lost her rights as a parent. The Court decided that TMH was not a "donor" -- that it was not a situation where TMH had given away her ova so that another mother or couple could have and raise a child. The Court found that the intention of TMH and DMT, their agreement, was to have and raise a child together, and that that is what they had done for many years before they had a falling out.

The Court went on to make several significant rulings in the case, as part of its decision. First, that the right to procreate and parent your child is a fundamental, constitutionally protected right. The court applied this right to decide the case, thus holding that lesbian parents' rights are constitutionally protected, and specifically stated that applying F.S. 742.14 to deny TMH's maternal rights would violate her constitutional rights, including her right to equal protection under the law. There are some technical constitutional law issues that make up the constitutional law ruling, but this the bottom line of the Court's decision.

One thing to note, and the reason I mention above the District the case came from, is that a decision of a District Court of Appeals is only "binding" on the circuit courts in the counties covered by that District. The circuit courts are the "trial" courts that hear your family law case. When you go before a family court judge for a hearing or trial - the judge you'll see is a Circuit Court Judge. The website for the Florida Courts list the counties covered by each District Court of Appeal. So for example, in a case in the future, the Fourth District Court of Appeal covering Broward and Palm Beach Counties could decide the issue addressed in TMH v DMT differently than the Fifth DCA did. The Fifth DCA in the TMC decision, "certified" the issue in the case, i.e. sent the case up to the Florida Supreme Court, as a matter of great public importance. The parties are currently filing briefs before the Florida Supreme Court. This post will be continued in Part II.

A contested, high-net worth divorce in Florida involves an interesting combination of a transaction or case that in many ways resembles any complicated business matter, but in the context of a divorce, where emotions run strong, and where the the legal standard for deciding the property and alimony issues, are basically - what's "fair" or equitable. The business or property issues in your divorce will be decided in family court, usually in the Judge's Chambers where family law cases are typically heard, and most likely during the same hearing or trial where children's issues are decided also. So, the litigation factors of adequately presenting your case to your Judge, and explaining why the positions you are taking on business or money issues are fair or equitable, are important.

A second important component of a contested, high-net worth divorce, is doing the ground work to be prepared and take the guess work and uncertainty out of the case, as much as that is possible. If the value of a business is disputed, and the business seems to have a significant value, retain a highly qualified valuation expert to value the business and give you something you can rely on in negotiations, and if you end up at trial. An expert's opinion is of great worth also in analyzing and responding to issues that come up as the parties and attorneys negotiate, and attempt to settle a case. For example, the other side may raise an issue, and your expert assists in providing the clear and certain response, e.g. regarding technical pension valuation analysis. This type of back and forth in negotiations can decide an issue, and if your position is correct, convince your spouse that there is significant risk at trial if they move forward with litigating the issue.

Other examples of important areas for utilizing qualified experts, in addition to business valuation, are regarding tax issues that arise in the case, valuing a pension plan benefit, a vocational expert if a party's income earning capacity is at issue, or the services of a forensic accountant when issues arise regarding the accuracy of amounts on the books for a company, or regarding a party's income. If a case goes to a trial, the issue will be decided almost certainly based on the testimony presented at the trial. A qualified, trusted expert, presenting testimony solidly and fairly based on the facts in the case, helps a lot.

A third important component in a high-net worth, contested divorce, is the work of your attorney in providing the clear analytical framework for understanding, negotiating and litigating the issues in the case. Having a clear understanding and being able to make decisions in the case based on clear information and advice will help you. And if you're in a fight, a highly adversarial case, you'll want an attorney who can fight for you, although an outwardly aggressive or "abrasive" personality isn't necessarily the best indicator of effectiveness in family court. You'll most likely want someone who can assist in reaching a settlement in the case if that is possible, but who can effectively and strongly litigate the case for you.

Continued from Part I. Some of the terms used in this post are described in Part I, and it will probably be easier to read Part I first. One of the advantages of having payments go through the State Disbursement Unit (SDU) or depository, is that it limits interaction with the other parent which some parties very much want. Also if payments are made through the SDU or local depository, it's more "official" in the sense that the depository keeps track of what is paid and owed, so there is a government agency tracking that. If the child support is going through the SDU or depository and the payee doesn't make the payments, the depository will take steps to generate a delinquency judgement against him or her - i.e. a court order that says the payee is delinquent and owes you the amount of the delinquency as "arrears". Also, when payments go through the SDU or the depository, and the payee becomes delinquent, you can contact the depository and ask them to begin the process of cancelling the payee's driver's license if they don't pay. Each of the enforcement tools described above is available whether you have payments go through the SDU or the local depository (but the local depository is the office that actually initiates these enforcement actions -- the SDU is basically a State agency that handles receiving and disbursing child support funds). There are additional methods available to enforce child support either on your own, through a private attorney, or you can apply for services through Department of Revenue, Child Support Enforcement, to have the Department of Revenue enforce the order for you.

The first step if you want child support payments to go through the SDU or the local depository, or if there is an Income Deduction Order, is to set up you Child Support Account. You have to do that through the local Clerk of Court's child support depository. You can find the contact information for the depository on the website for the clerk of court in your county. The following link will take you to the website for the Broward County Child Support depository. There is a link on this website to a page with the application form to set up your account and to set-up direct deposit, and other information and "FAQs".

Unless you request otherwise and explain to the Judge why you believe it is in the child's bests interest for payments to be made directly by one parent to another, rather than via an Income Deduction Order, the Judge will order payments through the SDU and enter an Income Deduction Order. If you and other parent, however, request "direct" payment, and give at least some reason why you want that and believe it is best, the Judge will most likely go along with want you want, so long as there isn't something in the case that makes the Judge think that isn't going to be a good idea. Even when the Court approves direct payment, Florida Statutes require the Judge to enter an order providing for Income Deduction, but the order can provide that Income Deduction is delayed and will not start or take effect, until until the payee is delinquent in his or her payments.

As far as the advantages and disadvantages of having child support come directly out of the payee's paycheck via an Income Deduction Order -- the basic advantage is that it's a wage garnishment order -- the funds come out of the paycheck and go to you -- less worry about the money being paid. Some people are uncomfortable having their job involved, but Income Deduction Orders are fairly common these days. Some parents for various reasons prefer not to go this route, but it's an option that's there.

This post and Part II will focus on some of the nuts and bolts of setting up a child support account with the State once you have your child support order, and some of the different ways or options for receiving the payments. One issue to consider when you get your Broward County Child Support order, or order in another county in Florida, is the method you want to use for receiving the payments. You can receive the payments directly from the other parent, or have the other parent pay the support through the "State Disbursement Unit" (SDU) in Tallahassee or your local Clerk of Court Child Support Depository. Another decision is whether you want an "Income Deduction Order".

First to explain some of the terms: The State Disbursement Unit ("SDU") is an office/agency in Tallahassee which handles receiving and then disbursing child support payments, and the County Depository is an office in the county Clerk of Court that can perform that function also. Basically, the payee pays the child support to the SDU/Depository, and the SDU or local Depository then pays the support to you. If your case is a "Title IV D" case, i.e. if the Florida Department of Revenue is handling your case for you, then the proper "depository" is the SDU. The Department of Revenue, Child Support Enforcement Division can handle filing the court papers to get the initial child support order for you, and can represent you to enforce the order later on if the payee does not make the required payments. I'll include further information in Part II of this post about applying for services through the Department of Revenue.

If the Department of Revenue is not handling your case, then you can set things up for the person paying to pay either through the SDU or the local Clerk of Court Depository. It's a little confusing, but just part of the way the payment system has evolved over the years. One advantage of the payment going through the SDU for you if you are receiving the child support, is that you can set up direct deposit of child support you receive through the SDU, but not the local depository. One last term - an Income Deduction Order is a special type of court order which requires the payee's employer to deduct the child support payments from the payee's paycheck, and send the funds to the SDU.

Some people prefer to receive payments directly from the other parent, rather than having them go through a depository. There used to be a potential time-saving by setting things up that way - you didn't have to wait the time for the payee to mail the check to the depository, and then get a check back in the mail, but now a payee can pay by having the funds come right out of their bank account by electronic funds transfer, and you can receive you funds by direct deposit - so that advantage is not really there anymore. There is a fee when the payment is made through the SDU, up to $5.25 per payment (no fee if the Department of Revenue is handling the case). Continued in Part II.

As a Broward County Domestic Violence attorney, one issue that arises in some cases and that is good for you be informed about ahead of time, is how to enforce a Domestic Violence Injunction. Although an Injunction is more than just a piece of paper because it does carry with it some important enforcement powers, in another respect it is just a piece of paper. If you are confronted by a violent spouse or significant other and no law enforcement or other source of safety is around, the Injunction is not going to provide protection, other than whatever concern the perpetrator may have regarding the consequences of violating the order. There are links here to domestic violence programs which can help with guidance, and also a domestic violence shelter when needed.

Law enforcement can arrest and take someone into custody for violating a Domestic Violence Restraining Order. If someone subject to an Injunction comes to your home, contacts you, comes within 100 feet of your car, damages your property or takes other action constituting a violation, you can contact law enforcement for assistance. Once arrested the person must be held in custody, and not released until they are brought in front of the Court for a bail hearing.

The other avenue for enforcement is to go the Domestic Violence Unit at the Courthouse, where the staff will assist you with filling out a Petition and Affidavit laying out the details of the violation, and requesting a hearing to determine if the perpetrator should be held in Contempt of Court for violating the Injunction. The Judge can impose fines or place a person in jail for violating the Injunction. The Florida Statute governing enforcement of Domestic Violence Injunctions provides that the Domestic Violence Unit at the court should also send the Affidavit to the State Attorney's Office, and you can provide a copy of the Affidavit to the State Attorney's Office yourself. Violating a Domestic Violence Restraining Order is a crime, and the Domestic Violence Unit can forward the Affidavit to law enforcement as well. There are links here for the Domestic Violence Units at the courthouses in Broward, Dade and Palm Beach counties, and you can find a copy of the Affidavit here.

One thing some people are not aware of, is that a Domestic Violence Injunction prohibits the perpetrator from contacting you directly or indirectly. That means it is a violation for the person with the Restraining Order against them to have someone other than themselves contact you, follow you, etc.

It is important to carry your Restraining Order with you. There is a procedure whereby information about the Injunction is entered into a statewide electronic database, but you should keep the Restraining Order with you, so law enforcement can see it, including seeing the specific terms and provisions the Judge has written into or checked off in the Order. This is especially true if there are provisions in the order regarding custody of children, and whether the Respondent can see the children.

One other area I wanted to address is some of the terms used in this post - I've used the terms Injunction and Restraining Order pretty interchangeably here. An injunction is a general type of order which prohibits a person or company from doing something, or requires them to do something. "Restraining Order" is a way of referring to an injunction which prohibits or restrains someone from doing something. There may be finer distinctions in older case law or statutes, but this explanation is pretty close. A domestic violence injunction is a particular type of injunction, with the rules governing it in Florida Statutes Chapter 741, and in the Florida Family Law Rules of Procedure, Rule 12.610. Two other terms - Respondent and Petitioner: the Petitioner is the person who files the Petition requesting the Judge to issue the Injunction, and the Respondent is the person who is alleged to have committed the domestic violence and who then responds to the allegations in court if they choose. Someone concerned with their safety probably isn't most concerned with the different terms, but avoiding a little confusion may help sometimes.

Most Broward County Child Support attorneys, as well as mediators and Judges at the courthouse, use family law financial software to calculate child support, and there are some child support calculators on-line. If you're attempting to determine child support though for yourself, it's going to be a good idea for you to make the calculations by hand, using Florida's Child Support Guidelines Worksheet - to be sure you get the figures right, including any adjustment for the number of "overnights" each parent spends with the child(ren) (more below on this), and to be sure you'll understand the issues and items that go into determining child support under Florida law.

The first step is to determine each parent's net-income. The income and deductions that are considered in determining net income for child support are set forth in detail in Florida's child support statute, but the easiest way to arrive at the amount is to complete the Florida Family Law Financial Affidavit. There is a separate form if you make under $50,000 per year gross income and one for over $50,000. The financial affidavits, child support worksheet as well as other family law forms can be found at Florida Family Law Forms. As you can see on the child support worksheet, you need each parent's net income to calculate child support. If you know the other parent's monthly gross income and their monthly health insurance costs, figuring their net income may not be difficult for you. There are paycheck calculators on-line that will assist you in determining monthly income tax, and social security and medicare taxes. The amounts you list for monthly taxes on the financial affidavit will not necessarily be the amounts deducted each month from a paycheck - some people, based on the number of exemptions they list on their W-4, have more or less than the actual amount of the taxes they'll owe at the end of the year deducted from their paycheck. In cases where you don't know the other parent's income, there is a part of litigation called "discovery" through which you are entitled to receive financial information and records from the other parent, including their financial affidavit and copies of bank account and other statements. If you believe the other party is hiding income, there are more extensive discovery methods available, and some litigated cases will involve using a "forensic accountant" as an expert witness in establishing the other party's income.

Once you have the net income for each parent, you can proceed with filling out the blanks in the Child Support Guidelines Worksheet. The Worksheet tells you step-by-step what amounts to add or subtract from what, and the other parts of the calculations. The concept is basically that you add together the parents' net incomes to arrive at an amount for combined net income, then use the child support chart included in the instructions for the Worksheet to come up with the "Basic Monthly Obligation". If you look on the child support chart, you'll see income amounts on the left side, and the number of children across the top, and the Basic Monthly Obligation for your situation, as shown on the chart, is the amount the Florida Legislature has determined is the amount that should be used as the basic child support amount (before health and daycare costs) for parents with a certain combined net income and number of children. The Worksheet will then take you through determining your share of the basic monthly obligation, which is based on your percentage share of the parents' combined net-income. For example if the parents' combined net income is $3,000/month and your monthly net-income is $2,000, the calculation starts off with your being responsible for 2/3 of the basic monthly obligation. Each parent's percentage share of daycare and health insurance costs for the child are then added in.

There is then an adjustment if each parent spends 20% or more of the overnights with the child - that's the number of nights the child spends with you under the time-sharing plan in place. It's a bit more complicated to explain this calculation, but there are detailed instructions on the Worksheet. Basically, the parent paying child support will pay less, the more overnights they spend with the child.

Florida's alimony statute, F.S. § 61.08, has gone through some significant changes over the past two years. There are rules now which help spell out what are "long-term", "short-term" and "moderate-term" marriages - see F.S. 61.08(4). The Florida legislature defined a new kind of alimony - "durational alimony", which is something in between permanent and "bridge-the-gap" alimony, and can have a duration up to the length of the marriage - e.g. a maximum term for durational alimony of 10 years, following a 10 year marriage.

One of the most significant changes in the statute is an addition to the permanent alimony section, F.S. 61.08(8): "In awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties." Before the changes to the alimony statute, and before the recent change adding this sentence, a conventional wisdom was that for a long-term marriage that was at least some degree of a presumption in favor of an award of permanent alimony. This new sentence in section 61.08(8), I believe, pretty clearly changes that calculation.

Spouses will still have at their disposal all of the reasons and arguments that have supported requests for permanent alimony in the past, and presumably Judges in the past didn't award permanent alimony if they believed there was no need for it, because other forms of alimony could adequately provide for the recipient spouse. Attorneys and spouses requesting permanent alimony in the past have argued that it was needed because other forms of alimony were not adequate; and attorneys or spouses advocating against permanent alimony could always argue that It was not appropriate because some other award was fair and reasonable. Similarly, many people argue, with plenty of good reasons, that presumptions don't decide cases, i.e. a Judge will look at a case and attempt to do what is fair - that is, make a decision, rather than decide a case based on a presumption. But presumptions or burdens of proof do decide some cases. In a close case, a bit of a presumption can change the thinking in the courtroom or Judges Chambers (where family law cases in most counties are heard).

Perhaps an even more significant effect of the new language in the permanent alimony section, is on negotiations between the parties or attorneys, or in mediation. The requirement that the Judge make an "affirmative" finding that no other form of alimony is appropriate, can change the calculations in a negotiation. In general, it seems to me, at least as I'm writing this, as if there is a bit of pressure coming to play against awards of permanent alimony in Florida, but alimony, as most people acknowledge, is one of the more subjective issues in family law.

It may have something to do with the state of the economy. I've heard some personal injury attorneys mention that juries are sometimes less inclined to award large judgments in bad economic times, maybe because it seems like a windfall. Perhaps when there is risk, uncertainty or hardship in the economy, it seems tough to award permanent alimony, unless it's a situation where it is clear there is no other other available, adequate form of support. However, as there was before the changes to the statute, there is always "the other side" -- when spouses have been married a long-time, one spouse is doing well, and it looks like the other spouse can never earn at the same level or maintain the marital standard of living, then permanent alimony can or will look like the only form of support that is fair or reasonable. Incidentally, when the amount of alimony is in dispute, there's a pretty good chance it's going to one of the final issues everyone is going back and forth on, as a mediation or an attempt to settle a case comes to close.

In this post, I wanted to draw attention to an organization in Broward County that provides services for victims of domestic violence. The organization, No More Tears was founded by Somy Ali, who continues to provide the large bulk of support and assistance for clients of the agency herself.

The agency is staffed entirely by volunteers, and has worked out partnerships with Dade and Broward County Divorce Attorneys, Immigration Attorneys, Counselors, Optometrists, Dentists and other providers in the area to provide a broad range of services to clients in Broward county as well as other parts of the state. It's hard to do better justice to the work done by the organization than visiting the agency's website, or listening to some of the interviews there of the organization's founder, and I encourage you to do that - if you are looking to support No More Tears, or are in need of help.

The agency is fortunate to be supported by an active and accomplished board of directors. There is a fund-raiser coming up on October 6, 2011 at 5:30 p.m., hosted at The Bank Atlantic Corporate Center in Fort Lauderdale. You can find more information about the fund-raiser at No More Tears' website, and also follow the organization on Facebook.

Although funding cuts have affected services in many areas, Broward County is fortunate to be served also by Women in Distress, a full service domestic violence center serving Broward County, as well as the Domestic Violence Unit at the Broward County Courthouse which can assist you in completing the paperwork to seek a Domestic Violence Restraining order. You can find these resources, as well as domestic violence services in Dade and Palm Beach Counties by following this link -- domestic violence services.

Parts I and II of this post went over some of the rules for parenting coordination, in particular some of the points of contention raised in the brief Sotero opinion, and that come up frequently in cases in Broward and Palm Beach counties also. Now the issue is how important are the rules, or rather how important is it if for the focus to not be on the legal rules once parenting coordination sessions start. I don't think there is much disagreement with the idea that it is good to make the ground rules for parenting coordination clear at the beginning, in a Court order if there is one, and in a Parenting Coordination agreement between the parents and the parenting coordinator, so that everyone is clear regarding confidentiality, how the process works, fees, the goals, etc.

However, instead of or perhaps in between the worries and concerns regarding the rules, or legalities or what's fair to one parent or the other, there have to be moments when there's a focus on finding some small steps one or both parents can take to bring about even minor improvements or decreases in conflict, or increases in the period of time between difficulties. The small step might be something that has worked in the past, or a small adjustment that brings about a change in the way things unfold. This may sound far fetched as a way to improve a highly conflictual situation, but if you're in a situation where it seems the conflict goes on and on, and nothing has worked, it might be worth going along and giving something else a try.

One of the hallmarks of a parenting coordination approach, I believe, is that it's not really an "insight" oriented process. It's not psychoanalysis where you'll focus on your childhood, your "psyche", etc., but one issue worth considering is whether one or both parents is holding onto the conflict between them, because there is some alternative that is worse. It can also be important in parenting coordination when progress seems stalled, for all of the participants to remember that the primary focus is on what's good for the children, even though a solution or compromise, or taking a few days to think about an alternative, might not feel good for one or both parents at that moment.

The above is mostly focused on situations where there is very high conflict and things aren't working very well. Parenting coordination is also useful where the parents simply want additional help working out the details of a Parenting Plan, time-sharing, etc, in a forum that allows time to address these topics in more detail. Parenting Coordination is a forum where there's also an opportunity for the Parenting Coordinator to bring in any professional experience or opinions he or she has regarding time-sharing schedules, for example, that tend to work best for children the age of the children in the case, or to try to drawn on any available research results that can help the parents come to a decision about what is best for their children. In some respects, it's going to a "specialist" in Parenting Plans.

I think a lot of it comes down to the relationship you'll have with your Parenting Coordinator. You'll want to develop a positive relationship where you're working together for the most part, moving forward - there are always some problems, sidetracks along the way. You'll also, though, want the Parenting Coordinator to feel free to let you know when he or she disagrees with you, and thinks something else might work better for you and the children.

The primary issues raised by the Sotero case - the confidentiality of parenting coordination, and the authority the court can give to the parenting coordinator, are two issue often relevent to a Broward County divorce attorney or client, when they evaluate the possible use of a parenting coordinator in a contested divorce or other family law case. Even in contested cases, I believe parents in parenting coordination make efforts to address children's issues for the sake of their children, but the parenting coordination happens within the context of an adversarial case, where the parents are often also going be concerned about how the parenting coordination may affect their case. So, issues parents may be concerned about are what information the parenting coordinator can bring back to the Judge regarding communications in the sessions or the parenting coordinator's recommendations, and also the authority of the parenting coordinator.

There are some significant exceptions to the confidentiality rule for Parenting Coordination. Communications in parenting coordination are not confidential if:

• The information is necessary to verify a written agreement between the parents during parenting coordination;


• The testimony is necessary to identify an issue that is unresolved and needs to be resolved by the court, without otherwise disclosing communications made by either parent or the parenting coordinator;


• The testimony or evidence is limited to the issue of a parent's compliance with: the parenting coordination order; orders for psychological evaluation, counseling or substance abuse evaluation/treatment; or counseling recommended by a health care provider;


• The testimony is the parenting coordinator reporting that the case is no longer appropriate for parenting coordination;


• The parenting coordinator is reporting that he or she is unable or unwilling to continue to serve or is not qualified to address certain issues in the case and that a successor parenting coordinator should be appointed;


• The parties agree that the testimony or evidence be permitted;


• The testimony is necessary to protect any person from domestic violence, child abuse, neglect, or abandonment, or abuse, neglect, or exploitation of an elderly or disabled adult (there is more, very specific language in the stature regarding this provision); or


• The testimony or evidence is that it is expected that the child is about to be wrongfully relocated/moved, with protections for a parent who moves to avoid domestic violence.

Both the statute and the form order say that communications during Parenting Coordination "sessions" are confidential. Many if not most parenting coordinators do some of the work over the phone, e.g. if a parent calls with an issue that has come up. I believe "during sessions" would be treated as including the communications over the telephone.

The Parenting Coordinator rules allow the Parenting Coordinator to have temporary decision-making authority to resolve specific, "non-substantive" disputes between the parties, but only if both parents agree in writing that it is ok for the Parenting Coordinator to have this authority. A "substantive" change is something that significantly changes the time a child spends with either parent or modifies parental responsibility. So, the Parenting Coordinator is not permitted under the Family Law Rules, to have the authority to make big changes to time-sharing/visitation, or to parental responsibility - i.e. who gets to make decisions regarding the significant issues in a child's life - schooling, religion, medical treatment, significant extra-curricular activities. The Rules, however, permit the Parenting Coordinator to be given the authority to make recommendations to the court regarding changes to time-sharing or the parenting plan, but again, only if the parents agree in writing for the coordinator to have this authority.

A Florida appellate court, for the appeals district covering Miami-Dade County, recently entered a decision dealing with the authority of Parenting Coordinators in family law cases, and the confidentiality of communications in Parenting Coordination -- Sotero v. Sullivan. In this case, the Mother appealed the decision of the trial court based on the trial court without the consent of the Mother:

• giving the parenting coordinator the authority to make binding decisions regarding the minor child in the case;


• giving the parenting coordinator the authority to impose monetary sanctions upon the parents; and


• waiving the confidentiality of communications with the parenting coordinator.

The appeal also dealt with the confidentiality of the Mother's communication with her own individual therapist. The Father, through his attorney, consented to the trial court's order being overturned. The appeals court treated that as a "confession of error" and based on that "vacated" the trial court's order and "remanded" the case back to the trial court, for it to make a decision consistent with the rules governing parenting coordinators.

The rules for Parenting Coordinators are found in Florida's Statutes - F.S. § 61.125, and the Florida Family Law Rules of Procedure, Rule 12.742 (if you follow this link just scroll down until you come to the text for Rule 12.742). The Florida Legislature passes the laws/statutes of the State of Florida, and Florida's Supreme Court adopts Rules of Procedure, including the Family Law Rules of Procedure, which are binding rules and must be followed also.

Parties can voluntarily meet with a Parenting Coordinator if they want, without a court order, and agree between themselves and with the Parenting Coordinator what the rules will be, and the rules specifically applicable to court ordered Parenting Coordination would not apply. If there's not a great deal of conflict between parents, and they simply want some help working out children's issues or a Parenting Plan, they may not be concerned about confidentiality or a court order. There could be or there could be a way to fashion confidentiality for non-court ordered parenting coordination, but there are actually several legal issues to address for that. There are some potential advantages if parenting coordination is not confidential. There are different "schools" of thought about the importance of confidentiality in parenting coordination-- some Parenting Coordinators strongly believe confidentiality is important to help people feel free to address issues in the sessions. Some believe it should be waived by the parties, so the Parenting Coordinator, if necessary, can come to court at some point, make his or her recommendations or report, and help to get the children's issues resolved. The Parenting Coordination statute reflects the view that confidentiality, with the exceptions discussed in Part II of this post, is important.

The next piece to this rules/statute explanation, is that if the Parenting Coordination is Court ordered, the Court Order is going to look very much like Florida Family Law Rules of Procedure, Form 12.998, so you can look at that to see what is in a Parenting Coordination Order. A Court Order referring parents to a Parenting Coordination must be in "substantial compliance" with the Form Order -- Form 12.998.

(Continued in Part II)

In Part I of this post, I discussed some tech developments that may end up making video-calling with children a more common form of communication during Florida time-sharing, and some potential disadvantages. If the issue is the best interests of the child - what is best for children here? Is it better for children to have more contact and connection with the other parent and a sense of their relationship with their other parent being very much present during time-sharing, or better for time-sharing with each parent to be more separate time, and for the child to experience it as separate time with more of a boundary, for lack of a better term? There's been a focus recently on "empirically based" parenting plans - i.e. making time-sharing decisions based on what psychologists and research indicate is best for children. This is probably an area where input from experts will help, when parents have a difficult time agreeing about what's best for their child. One area where research has had an impact is in the move to frequent contact, without long breaks, for younger children, based on attachment theory - i.e. basically that it's better for young children to not go a long time, e.g. a full week, between visits with each parent. Research and expert opinion may end up helping us with the issue of video chatting as well. One situation where webcam communication is already regarded as something good, is where the parents live far from each other, limiting contact with one parent, for example after a relocation.

One issue with video-calls may be that it's still a relatively new technology, in the sense that most of our telephone calls these days are audio only, not through video phones. I think there was probably some resistance to touch-tone phones when they first came out as a new technology. Video-phones may one day be a common-place form of communication.

Another important issue for parents which this topic raises, in my opinion, is that if parents don't want research or experts or the court deciding what's good for them and their children, then parents can reach agreements themselves regarding how they want to raise their children. Parents' rights to their children and to make decisions regarding their children, within some limits, are actually constitutionally protected rights. I think most parents probably put a lot of thought into how they want their children to grow up, and the values or way of life they want to pass on to their kids. There's always plenty that each of us can learn from therapists, experts or research, but each child growing up with the influences from their own family is probably a lot of what makes each of us unique - which, for the most part, is not a bad thing. So, if parents want to preserve their right to raise their children in the way they want, they can try to put aside their differences and try to reach agreements regarding children's issues. There are legitimately times when that is not possible, where there are fundamental differences of opinion and a "compromise" is not possible, but trying to agree where possible or even when it doesn't seem possible - is something to keep in mind.

There were some tech announcements recently that I think eventually may lead to changes in parents' contact with their children during time-sharing time with the other parent.

You may have heard that Google announced it's new service, Google+. One of the key features is easy to use webcam conferencing built into Google. Not to long after Google's announcement, Facebook announced that it had purchased Skype and was offering video conferencing as well. There is an interesting "podcast" here about Google+ with some of the Google developers on the show, via a Google+ video conference to illustrate the technology.

Video-calls aren't anything new. Parents have already been using video to stay in touch with children during time-sharing, and it's not a new topic in family law commentary, blogs etc. Also, references to parents communicating with their children via video/webcams are already in Florida time-sharing statutes (e.g. F.S. § 61.046(5) and F.S. 61.13001(9)(a)).

What's new I think about Google's and Facebook's announcements, is that video "chats" should soon be as easy and accessible, as say - Google and Facebook. It's been possible before, but most people have probably never set it up, because you'd have to find the software you need, figure out how to use the program, etc. From what I'm seeing so far, it's looking like using the service, for example through Google, should be as easy as plugging a webcam into your computer, and following a few instructions.

Currently, although as mentioned video is listed in Florida statutes as a form of communication between parents and children and is already being used, it's not something that is typically included in a Parenting Plan/Court-Order as a required form of communication. So, a Parenting Plan now might require each parent to be able to have telephone contact with their child once per day, but it's not common that the Plan will give the parent a right to a video chat with their child each night.

One question, even if video chats become easy and accessible to most people, is is it a good idea for a court order to provide for a brief video call while the child is with the other parent? Would a parent having a chat, in a sense face-to-face with their child, impinge too much on the other parent's time with the child? If video-calls would be ok in many situations, would they pose more problems in situations where there are already difficulties - e.g. where one parent or the other already has a sense that the other parent is trying to interfere with their time-sharing, trying to convince the child to come back to their home, etc.

Another issue that comes up sometimes is one parent attempting to use phone calls with the child to communicate with the other parent, in situations where that's not wanted or contrary to a court order. That can happen in telephone calls, and it could be worse during face to face communication via video. There's the issue also of privacy - one parent watching the chat between the parent and child, or not necessarily being too interested in having their ex's face show up in their house.

(Continued in Part II)

Another process, which I don't think is quite as well known at this point as mediation, is Collaborative Family Law. It's basically a process where both sides and their attorneys agree and commit to resolving the case outside of court. Everyone signs an agreement that if the case ends up contested in court, neither of the attorneys who participated in the collaborative family process is permitted to represent a party in court.Collaborative Family Law is usually thought of as a approach where everyone tries to get along, and usually happens as a series of meeting with all the parties, attorneys and any experts present, where the parties "collaborate" and try to resolve the case.

I believe it's possible for it to work also in situations where there is high conflict, it the parties make some basic commitments, at least in their own minds. Even if the parties hate each other, and have no interest in sitting in the same room, it's still possible for everyone to commit to resolving the case outside of court - i.e. deciding we're not going to file a court case, we're not going to go through all the court processes, hearings, "discovery" etc. and one way or another, we are going to resolve the case. In addition, instead of handling the collaborative family law case through meetings with everyone present, the case can proceed to resolution through more informal negotiation, e.g. between the attorneys. You'll find that attorneys in a collaborative family law case often have a different approach or orientation, than even the same attorneys do when handling a litigated, adversarial case. In a litigated case, attorneys can be cordial, even friendly and get along, but the litigation process involves a potential eventual trial, and the case has to be prepared with that in mind - i.e. an adversary process, versus the approach or orientation in a collaborative family law case where the idea is to work together.

For these alternative dispute resolution approaches to work, either mediation or collaborative family law, both sides need to be reasonable - at least in terms of not relentlessly, without end, seeking a settlement that is simply not reasonable. Sometimes seeking an "unreasonable" settlement will work for you - e.g. try to go to mediation to get a settlement that there is no way you could get in court, but if the other party is represented by a competent attorney or is aware of what Florida law provides, it's likely to result in no settlement. Although some mediators may not want to acknowledge this, there are almost certainly cases where one spouse or the other wants to get the case into "pro se" mediation, with the primary goal of getting a settlement that isn't "fair" and won't fly if their spouse gets legal counsel. Similarly, there are probably cases where one spouse or the other is interested in collaborative family law because they seek to drag out the process or get a resolution they couldn't get in court. On the flip side, there are probably more cases where the parties could settle through mediation or collaborative family law, without the fight and with less expense than they get if they file suit and contest the case in court.

This has been a bit of a round about discussion in the two parts of this post, but the point I'm trying to make is that you both don't have to be willing to sit down and hold hands to be able to take advantage of "alternative dispute resolution". It takes more I believe a commitment to resolve the case outside of court, with the help of a professional or professionals, who can perhaps help to lead you to a settlement. I've written some here about the differences between the different approaches to handling a family law case -- mediation, collaborative family law, and traditional divorce litigation, and you can look here (mediation) and here (collaborative family law) for more information about that, as well as the drawbacks or potential disadvantages of the different approaches.

More and more clients and divorce attorneys in Broward, Dade and other parts of Florida are moving towards trying to resolve family law cases outside of court. It's always been the case that most divorces and other family law cases are settled outside of court, before trial, but something that is become more popular these days, as people look for less adversarial and less expense ways to handle divorces, is something often referred to as "alternative dispute resolution", including Mediation and Collaborative Family Law. Many people are pretty familiar with mediation, and there is an earlier post on the blog discussing mediation. You can find more information here about Collaborative Family Law.

The issue I wanted to address in this post is can these alternative, or potentially more friendly approaches work where the parties don't like each other, or where there are still extremely strong feelings of anger or resentment? You don't necessarily quickly get over being seriously wronged by another person - especially a spouse or other person who was close to you. So the question is, while mediation or a collaborative process can work when people basically get along and agree about how they want to settle things, can it work when that is not the case at all? I believe the answer to that question - for a few reasons, is yes.

First, you can hate someone - be incredibly angry at them, but still want to get your divorce or other case resolved, done, so you don't have to live with it for a year or more, and spend large amounts of money on attorneys. There are cases of course, where one side or the other wants to litigate and make the other side suffer. Perhaps that is an appropriate course of action sometimes - I think that's more a decision each person has to make for themselves or with a counselor they're working with, etc. There are limits to what's permitted in the legal system, however - parties aren't permitted to take positions that are without any support, conflict between parents can have a negative effect on children, and there is the question of how much satisfaction a person can really get from fighting through the court system, or if that is a "curative" process.

Second, it is sometimes possible for you to hate each other, be incredibly angry, and still get through a mediation, for example, and come to an agreement. Sometimes it will involve one or both parties being willing to stomach being in the same building as the other party, or one or both parties, as applicable, making a decision to manage their own behavior, at least enough that a mediation can be accomplished. One good thing is that you can mediate a case, and never or almost never see each other. The mediation can be accomplished entirely through separate meetings between each party and the mediator, called "caucuses". One thing that has to be screened for is safety and domestic violence, and mediation isn't possible or appropriate in all cases. Although Collaborative Family Law cases usually involve a series of meetings among the parties, attorneys and any experts involved, it could be done through more informal negotiation through the attorneys.

For mediating a case, one thing I believe helps is for both sides either to be sufficiently informed about Florida law, at least enough to know what they want to settle for - e.g. how much they want for alimony, not be concerned with what their rights are, or be comfortable making a decision based on the general information a mediator can give them. A mediator can only go so far in giving the parties general information about Florida law. Using alimony again as an example, a mediator could tell you that alimony is based on need, ability to pay and the other factors listed in Florida's alimony statute, including the marital standard of living, but most likely will not tell you what's a reasonable or likely amount or range for alimony in your particular case. Each party can hire an attorney and go to the mediation with their own attorney, or go to the mediation themselves, but consult with an attorney before going, and after the mediation also before signing an agreement. Sometimes spouses will want to keep attorneys entirely out of the mix.

(Continued in Part II)