Articles Posted in Time-Sharing & Parental Responsibility

Published on:

I’ve written before about the role of a Guardian ad Litem (GAL). I want to focus in this post on some of the reasons you might consider seeking appointment of a GAL for your case, and the process for getting a GAL. I’ll use the terms Guardian, Guardian ad Litem and GAL interchangeably here.

Your attorney and the other parent’s attorney (or you and the other parent if you’re both unrepresented) can agree on an agreed order appointing a Guardian ad Litem for your time-sharing case, and send the order to the Judge for his or her signature. There are procedures you’ll need to follow if you’re doing this on your own – you can consult with an attorney, and there are usually case managers assigned to give some direction to clients who are representing themselves. If both sides don’t agree to appointment of a GAL, one parent/attorney can file a motion for appointment of a Guardian ad Litem, and have the motion heard and decided by the Court. Sometimes, there can be agreement on having a GAL appointed but not who to select, and the parties can submit an agreed order to the Judge for appointment of a Guardian, but leave a blank in the order for the Judge to select which GAL to appoint. The Judge might want to see both parties or attorneys in court to hear from both sides, before appointing the Guardian. Continue reading

Published on:

The United States Supreme Court recently handed down it’s decision in the DOMA (Defense of Marriage Act) case, and ruled that the Federal government cannot deny the status of married, when applying federal laws and programs to same-sex couples legally married under the laws of their state. You can find the full text of the decision at this link United States v. Windsor. The decision does not rule on the right of a state to ban same-sex marriage and is based on the historical rights of the states to define marriage, but many parts of the decision are relevant to a state like Florida’s ban on same-sex marriage. The decision also brings to the fore-front the issue of a state’s refusing to recognize marriages from another state.

Florida Statues Section 741.04 prohibits issuance of a marriage license for same-sex couples. Section 741.212 defines marriage as between a man and a women, and also provides that a same-sex marriage entered into in another state or any other jurisdiction is not recognized and is not given any effect in Florida.

Continue reading

Published on:

In a divorce or other family law case, if the Judge finds that it is in the best interests of the minor child(ren) in the case, the Judge can appoint a “Guardian ad Litem”. Either party to the case can request that the Judge appoint a Guardian ad Litem, or your Judge on his or her own initiative can make the appointment. The literal meaning of the phrase “Guardian ad Litem” is guardian for the lawsuit, or guardian for the purposes of the legal action only.

A primary role of the Guardian ad Litem is to investigate the facts of the case for the Judge and report back to the Court – to talk with both parents, the child(ren) and other important witnesses in the case. The types of case where Guardian ad Litems are appointed are cases where there is significant conflict between the parties regarding children’s issues and/or significant concerns regarding the well-being of the children. The Guardian ad Litem’s job is to act in the best interests of the child(ren) in reporting back to the Judge and making recommendations. The Guardian can obtain access to medical and other records, can request the court to order evaluations for the children or the parents, and can also assist with finding experts for examinations or evaluations.

Continue reading

Published on:

There have been reports in the news lately about the placement of 14 year old Modern Family actress Ariel Winters with her sister, because of emotional abuse by the child’s mother. The process for Dependency cases in Florida, is very similar to the events described in the news reports regarding Ariel Winters.

Florida Dependency cases often begin with a call to law enforcement or to the Department of Children and Families Abuse Hotline – 1-800-962-2873 (but can also start with an action filed in Dependency Court). The case is then investigated by a child protective investigator – in Broward County, child abuse investigations are handled by specially trained investigators in the Broward Sheriff’s Office (BSO). In Broward County (and I believe there is a similar process in some other counties), if there is a domestic violence injunction and there are children in the home, a BSO investigator will make contact with the parents to look into how things are in the home. Under Florida law, a child’s exposure to domestic violence constitutes child abuse. If the investigating agency finds that there is abuse, neglect or abandonment or “imminent danger of illness or injury as a result of abuse, neglect, or abandonment”, a child can be removed from the parent’s or guardian’s home and placed with another parent or relative, or in a temporary “shelter” placement in a foster home; and the case then proceeds forward in court and through the Department of Children and Family Services. The Florida Statutes regarding child abuse investigations and cases are in Florida Statutes, Chapter 39. One issue that has been litigated in multiple jurisdictions, is that if a spouse or other partner is the victim of domestic violence, the appropriate course of action is to provide services and assistance, versus jumping to removal of the child from the victim rather than providing assistance.

Continue reading

Published on:

Continued from Part I. For issues regarding the children, you can think about the type of time-sharing you want in the case, that you think is best for the children, and works for you and the other parent. For overnight time-sharing, relevant issues include being sure there’s a place in the home, apartment for the child to sleep, and the work schedule for each parent. Safety for the child, and for one or both parents is an issue in some cases. You’ll have to decide on how you want to handle the time-sharing exchanges and transportation, as well as money issues such as paying for extra-curricular activities, and medical, dental, vision expenses that are not covered by insurance, and who is going to get the health insurance for the child. The cost for health insurance is almost always added into and apportioned between the parents as part of the child support calculation. Many if not most mediators will have the family law financial software that will let them easily compute child support for you, once they have the figures to plug into the calculation. You can follow the following link for more information about calculating Florida child support. One good way to review and organize your thoughts regarding the children’s issue in a case, is to look through the form Parenting Plan on the Florida court’s website – www.flcourts.org, in the section of the website containing the family law forms.

If deciding who gets which assets and who pays which debts is an issue, it is a good idea to use some type of financial software or spreadsheet to keep track of how much in “net” assets each party is receiving, to avoid having to continually recalculate on a calculator as you keep trying out different options or scenario. It is also important to have recent account statements and pay stubs available and organized before you go to mediation, which can save you time searching for statements or calling the Human Resources department at you job during the mediation, to look for information regarding your earnings, the balance in retirement accounts, bank accounts, etc. If you need to deal with short selling or refinancing a home and removing one party’s name from the mortgage, you can think about how you want to handle this – how many months to refinance, what happens if it isn’t done or it’s not possible to get it done. Each case can involve different issues, depending on what there is to resolve. Sometimes people will use the first mediation session to help organize the issues and identify financial and other information needed to reach a settlement.

Sometimes, you will be able to resolve all of the issues in one mediation session. As I have mentioned before, in some mediations each party can take in the information they receive during the session, and come to decisions after the session. In my opinion, it’s better for there to be a period of time following a session before you sign an agreement, but many times parties will want to get everything done during the first mediation session, especially if the mediation is done as part of a case that is being litigated and both sides want it over, want to be sure they have an agreement, and want the litigation to end. Hopefully in a litigated case or otherwise, you won’t go into a mediation feeling that kind of pressure.

Published on:

Continued from Part I. The Court ruled in T.M.H. v. D.M.T, that Florida’s statute prohibiting gay or lesbian prospective parents from adopting a child, does not operate to take away the maternal rights of a biological or birth mother. That seems like a common sense ruling, like the ruling that TMH was clearly not a “donor”, but both were major issues in the case. There was a dissenting Judge in the case who wrote an opinion stating that under Florida law, TMH — the biological mother, had lost her rights as a parent.

Another important issue in the case was whether TMH had waived her rights as a parent, by signing a waiver form at the reproductive clinic — the form basically provided that TMH waived any rights she might have as a parent regarding any child resulting from her donation of her ova. The court ruled that this waiver form did not have the effect of waiving TMH’s maternal rights, because it was clear that that was not the intention or agreement of the parties, and that TMH was not a donor nor simply donating her eggs. The court relied on and cited cases from other states that had reached the same conclusions when dealing with similar waiver forms. So, this is Florida law regarding the waiver form, at least in this Circuit currently. It is always possible that a different decision will be reached by this court or another parallel or higher court in the future. There is also always a chance Florida’s legislature will attempt to craft a statute that will make these form waivers in a reproductive clinic binding and effective against parents like TMH, in a way that perhaps would successively survive a court challenge to the constitutionality of the statute.

The point here, is that there is reason to be cautious about signing these kinds of waivers, and to read carefully other kinds of forms that are presented to you in a doctor’s office, hospital or other location. Many if not most times, when you sign a document, it is binding. There are some forms a doctor’s office or hospital might require you to sign as a condition to providing treatment, but there are some forms you may have the option of not signing, or where you can negotiate regarding what’s included or added to the form. I fully believe that the staff at medical offices and hospitals have the patients’ welfare and best interests as their first priority, and that is true of the institutions as well, but at the same time I’m also fairly sure, at least from my own experiences with medical situations with family, that some of the forms (written by attorneys) are designed with the institution’s best interests in mind. In a situation like TMH and DMT’s, where the doctor is helping the couple conceive a child, perhaps the office would go along with the prospective parents writing on the form that the biological parent is not waiving her rights and that the couple intend to raise the child together, or simply not require the waiver.

The “concurring” opinion in the TMH case raised an additional interesting and important issue, based on the decision in Florida Department of Children & Families v. Adoption of X.X.G., 45 So. 3d 79 (Fla. 3d DCA 2010), which ruled that Florida’s statute prohibiting adoption by a gay or lesbian prospective parent violates the equal protection clause of Florida’s Constitution, and is unconstitutional. Judge Monaco in his concurring opinion in TMH observed that if TMH and DMT were not a same-sex couple, the court would probably have viewed them as being able to fall under a specific provision in Florida Statutes 742.14, which allows a “commissioning couple” to donate sperm/ova without waving parental rights. The statute, however, defining the term identifies a “commissioning couple” as an intended mother and father. If it is unconstitutional to prohibit a gay or lesbian prospective parent from adopting a child, it seems it would violate the notion of equal protection as well to not allow a same-sex couple to be treated as a commissioning couple (a quick review of the case law interpreting F.S. 742.14 indicates that heterosexual unmarried partners can be treated as a commissioning couple). The ruling in Adoption of X.X.G. was based on the Court’s determining that there was no rational basis or reason for prohibiting gay or lesbian prospective parents from adopting. The same reasoning should apply in determining whether there is a rational basis for prohibiting a same sex couple from seeking to have a child through the reproductive options available to other couples.

Published on:

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.

Published on:

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.

Published on:

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.

Published on:

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)