Articles Posted in Time-Sharing & Parental Responsibility

An issue has recently been addressed in the courts of another State that no longer arises in Florida, whether it is possible for parents to have joint custody or for there to be “co-domicilliary” parents — the phrase used in the litigation in Louisiana where this recent case arose, Hodges v. Hodges.

Florida in it’s family law rules and statutes has for the most part done away with the concepts of “custody”, or designating who is a primary residential parent.  In Florida, there is a determination of “parental responsibility” and then of what “time-sharing” each parent will have.  Time-sharing is the time — which days, nights, holidays the child(ren) spend with each parent; and parental responsibility is who makes decision about the significant areas of a child’s life — for example, education, religion, school.

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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 ›

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.

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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.

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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.

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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.

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 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.

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 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;
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