Evie's Day in Court

Four years at university, three years of law school and eleven years of practice were not enough to win a case against Evie. Jack Campbell, Esquire had encountered women like her before. At age 29, having already made serious life mistakes, Evie was not about to let her past ruin her life.

On her day in court Evie overcame her lack of education and history of drug addiction to be awarded frequent and unsupervised timesharing with her twin five year olds. Despite the fact that her former husband had retained counsel and had insisted that he, the father, should have sole custody, the judge awarded shared parental custody. And, even though Evie had to appear with no attorney to represent her the court followed the Florida family law rules and awarded her everything she requested in her petition for modification.

Evie knew down in her soul that her life, her case, was more important to her than it was to any attorney. Her attorney, while she had one, was all about the money, and had withdrawn the minute she could no longer pay him $500. per month whether he did any work or there was any court activity or not. Opposing attorney, Campbell, seemed to want to draw things out and string things along as long as possible. Evie just wanted to see her kids more than one supervised overnight visit per month.

By the time she had her day in court, Evie had been waiting almost two years. She had voluntarily let her children live with their father so that she could have an opportunity to get a better job, make sure she could stay clean, and get a stable living arrangement. But, the father, Charles, took the opportunity to take over everything, and before she knew it Evie was obliged to pay $500 in child support even though her income was much less than Charles'.

For every short story, there is a long story. Evie had never finished high school due to her attention deficit disorder and then falling so far behind in her classes that it was too overwhelming for her to even try to catch up. After a free fall through the cracks in the system, she quit school as soon as she legally could. She drifted for a couple of years, partying with her friends, having her time, living off the parents. She went to work at one of the many bars in the beach town where she lived. Being a barmaid was a perfect fit for her outgoing personality. Smiling and flirting, fetching and carrying drinks, earning decent money. The work atmosphere was fun. Everyone worked together, Work hard – play hard was her mantra.

By age 23 she racked up two DUI's, was arrested for possession of a controlled substance (oxycodone), and married one of her regular customers, Charles. He was a couple of years older and a Marine. At first Evie was entranced and enchanted by Charles' direct approach to life and his ambition to pursue a military career. Soon after their wedding Charles received orders to relocate to north Florida, Fort Walton Beach in Okaloosa County. The honeymoon ended quickly. Charles was sent out for training and then deployed overseas, leaving Evie in an unfamiliar town. She went to work in the only trade she knew, tending bar, made new friends and entertained herself with partying, drinking, and pills. Charles would come and go, and for a long time had no idea that Evie was using pills. She was an expert at hiding her addiction as she had hidden her usage from her parents for years.

Evie woke up one morning in her car which was parked outside the bar where she worked. She was in her work clothes from the night before. Her keys were in the ignition and the contents of her purse were dumped out on the seat next to her. A half full cup of what smelled like scotch was in the cup holder. The smell of which made her retch. Her head hurt and she was thirsty. She did not remember going to work the night before, or working, or leaving work, or going to her car, or

drinking, or apparently taking all of the pills that she had in her purse. At the moment of not remembering, she realized two things. That she was lucky to be alive, and that she did not want Charles to know. It was easy enough for Charles not to know as he was deployed on assignment somewhere, and not expected back for another week.

Evie put her things back in her purse, poured the contents of the cup out the window, smoothed her hair, and drove home – back roads all the way. She did not want to be pulled over or have to speak to a law enforcement officer for any reason, not now, not today. Once home, she slept, got up, raided the fridge, and slept some more. That evening when Charles' skype call came through, she ignored it. She had to think, she needed time to clear her brain so she could think before she spoke to him. She knew he'd detect that something was off with her if he saw her on skype. Before they married she had promised him that all of her drinking and drugging activities were in the past. She felt bad for letting him down, and she felt let down too. The marriage thing was not what she expected, not what she thought she was getting into. He was gone all the time. Home maybe four or five days a month – a week at the most. She was left to her own devices, which obviously were not very good devices, as she had gone back to the same life she had before they were married, except without her life long friends around her.

So she left. She packed up and left and went back to her parent's house in Daytona Beach. She left Charles a note saying that she had some things to work out and had gone back to her parent's house and didn't know when she'd be back. She knew Charles would be hurt and angry; and she knew her parents would be judgmental and angry. She avoided Charles' skypes and calls as long as she could, but finally a few days after he returned from his mission she picked up her cell when he called. Tears and shouting ensued. Despite Evie not wanting Charles to know about her pill addiction she finally confessed to him. He told her not to call or contact him until and unless she had checked herself into rehab.

Evie's parents were not amused that she had left her husband after less than two years for no other reason than he worked a lot. Evie's dad let her know that she could stay with them for one month maximum, and then she needed to get her own place or go back to her husband. Evie went to work right away at her former beach bar. Before the one month was up, however, Evie learned she was pregnant with twins. Evie's mom was ecstatic to be a grandma, Evie's dad didn't say much at all. They both told her she had to tell Charles.

Charles hung up on her every time she called. He would hang up as soon as he asked whether she was in rehab and she said no. After several tries, she quit calling. Charles filed for divorce, Evie agreed to it and did not attend the court hearing.

Evie's parents caved and let her stay with them until after the babies were born, but, they said, then she would definitely have to find her own place. Evie stayed clean the entire time she was pregnant. Did not drink a drop and did not take one pill.

After the babies were born, the three of them moved in with one of Evie's lifelong friends and her two children. Evie applied for social assistance, food stamps, and child support. Charles denied that the children were his. Only after a court ordered DNA test did Charles recognize the twins as his own. And once he did, he took full advantage of Evie's request for him to take them for a while so that she could get back on her feet and get clean. He went to the Department of Children and Families and convinced them that due to Evie drug addiction she was not fit to raise the children and he should have sole custody. (Evie had not used any drugs since she had found out she was pregnant.) And then Charles went to the Department of Revenue and requested child support, and he was awarded $500 per month.

But everything changed the day Evie finally got her day in court.

Proposed Changes to Child Time-Sharing Laws

Senate Bill 250 has passed in both houses and is awaiting Governor Scott's signature. This law change affects how the courts will decide child custody and time-sharing. According to the bill analysis, the significant changes and potential effect are:

"The bill creates a presumption that equal time-sharing is presumed to be in the best interest of a child. Assuming that placing a presumption in law simplifies time-sharing actions, parties to a time-sharing action may spend less on litigation costs."

And -

"The bill provides additional guidelines for the court to use in determining a time-sharing schedule of a minor child. Current law provides that the public policy of the state is for each minor to have frequent and continuing contact with both parents after the parents separate or divorce. Consistent with existing legislative intent, this bill creates a rebuttable presumption that approximately equal timesharing with a minor child by both parents is in the best interest of the child. A party may overcome the presumption by providing evidence based on factors that affect the welfare and interests of the child and the circumstance of the family.

Current law provides a list of factors for the court to consider in establishing or modifying a time-sharing schedule, based on the best interests of the child. In addition to the factors presently provided in law, this bill adds the following:

The amount of timesharing requested by each parent; and

• The frequency that a parent would likely leave the child in the care of a nonrelative on evenings and weekends when the other parent would be available and willing to provide care.
• The bill requires a court to support an order that provides for unequal timesharing with written findings of fact."

If the Governor approves this bill and signs it into law it is scheduled to be in effect on October 1, 2016. 

In my opinion, although the presumption that 50/50 times-haring is in the best interest of the child sounds like a good idea, it could have significant drawbacks. Parents would be required to overcome the presumption that 50/50 time-sharing is appropriate, and may pro se litigants are going to struggle to do that. Would they be required to have the other parent evaluated? Would this bill lead to additional litigation as the parties attempt to overcome the rebuttable presumption supporting 50/50 time-sharing? What do you think?  

How the Judge decides child custody.

Have you ever wondered what factors Florida family court judges weigh in determining how to decide child custody cases? It isn't which parent the judge likes the best. And it isn't always the mother. Years ago, Florida had what is called a "tender years doctrine" which said that the courts should give preference to the mother in child custody cases, when the children were young. That doctrine has not been used for many years, now the courts must rule in the best interests of the child or children in all family law matters. Following is the a through t list in the Florida Statutes.

61.13 Support of children; parenting and time-sharing; powers of court.—

(3) For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, which governs each parent’s relationship with his or her minor child and the relationship between each parent with regard to his or her minor child, the best interest of the child shall be the primary consideration. A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child. Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to:

(a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.

(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.

(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.

(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.

(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.

(f) The moral fitness of the parents.

(g) The mental and physical health of the parents.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

(j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.

(k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.

(l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.

(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.

(n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.

(o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.

(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.

(q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.

(r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.

(s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.

(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.

A Cautionary Tale - Guest Blog by Anonymous Dad

My twenty year marriage ended after a year and a half of divorce proceedings and a two day trial in July 2012. I tried to meet her halfway at every step of the way, but she was unwilling. During the process of the divorce, and still today, I have been harassed, threatened, coerced, intimidated and bullied by every means possible, legal and illegal, ethical and not. She has used the workers at the Department of Children and Families to harass me. She has dragged me to court on make believe allegations of child abuse and worse. She has set out to make my children hate me, and more or less succeeded with my oldest. The x wife's lawyer orchestrated the whole thing.

Although I tried, I was never able to get any help from the judge, my attorney, or the court staff to make the bombardment stop. In the end, at the end of the day, at the final hearing, I was awarded shared parental responsibility with 50/50 timesharing of my children. I spent over $150,000 but I still have my kids. I cannot say that this was money well spent. It was money wasted, but I don't regret it. I would do it again to ensure that my children remain part of my life. I will say, however, that I would much rather have spent the same money on my children, than paid it to my attorney.

I’m a warrior. My concern is that a person who does not have the fight in them would have lost their children. This happens every day in America, and I, for one, want to see it stop. If I broke then she would have gotten my kids. If I ran out of money, she would have gotten my kids.

My x told my kids that their dad is a rapist, angry, abusive, a wife beater, and a dangerous driver. All lies. I take my kids to therapy to learn how to deal with what they are hearing from their mom about me. Throughout the divorce proceedings the x's lawyer continued to try and get in front of the judge to stir trouble for profit.

In March we participated in mediation at my lawyer’s office. We agreed on financial arrangements after hours of negotiations. For some reason, my lawyer agreed that my x wife’s lawyer would write up the agreement. The marital settlement agreement took three months to prepare and was finally provided to my lawyer, at 9 pm the night before trial, on a Sunday.

When the paperwork actually made it to my lawyer, it was totally wrong and severely slanted towards the x wife. It was nothing we agreed upon and cost me $37,000 more than our initial agreement.

Also and most importantly about the financial "distribution" is that my x wife’s lawyer instructed her client to take $47,000 dollars out of investment accounts immediately after the mediation. There was no signed agreement so they stole the money in order to pay my x wife's lawyer bills and keep the case going.

This also ultimately made it possible to hire their social investigator. The money they took kept the case going since my ex-wife was out of money before the “theft”. Where are the ethics involved in this?

Unfortunately although I told my lawyer I saw what was happening and I wanted to stop the $47,000 transaction, my lawyer said to let it go. I took her advice. She went on further to say in writing that “maybe the feeling of having money will be good for them and they will stop and negotiate now.” I’m sorry I didn’t go with my instincts and not listen to my lawyer and stop the transaction.

Also, my ex-wife’s lawyer put in a motion for financial relief for the two parties. After going back and forth as to what assets we would equally disperse, they ultimately said in writing that we do not agree to do an equal portion. “The ex-wife is allowed to withdraw money while husband can’t have anything?” So, nothing ended up being withdrawn. My lawyer was stunned.

It was more stalling to keep billing while negotiating financials. It was an obvious attempt of my ex-wife’s lawyer to run up a bill.

In court the kid’s therapist said that my x was never interested in the well-being of the kids. The therapist went on to say that my x only wanted to use her [the therapist] for litigation.

The judge is not happy with my x. Or with me. Even though the judge doesn't believe her tales, the judge, I guess, would rather not hear anything at all from either of us

I am $150,000 poorer but have my kids 50/50. I write this for the poor man or woman who lost his or her kids due to everything I have described.

What about those people who are not educated, don’t have money, can be broken down by professionals who design a system to win?

Is there anyone out there who can help?

Child Support

Child support is one of the most critical and divisive issues among divorced parents. Particularly during these difficult economic times, child support can be a huge financial burden even for parents who love and cherish their children. It is well settled law throughout the United States that both parents are obligated to provide for their children. Every state has a slightly different method for calculating child support. In some states child support is calculated on a case by case basis decided by the judge. In other states there are guidelines, worksheets, and formulas that must be strictly applied.

The federal law that is used to enforce child support is called the Uniform Interstate Family Support Act (UIFSA). This is often referred to as a long arm statute, where one state can enforce a court order in another jurisdiction. For example, if a child support order is entered in Florida, it can be enforced in Georgia or any other state through UIFSA. Under the federal law, each state is required to recognize another state's child support order. It isn't necessary to formally transfer jurisdiction of the family law case to the other state for the other state to enforce it. However, in order to modify child support a state must accept Continuing Exclusive Jurisdiction (CEJ). The CEJ usually follows the child's residency. The state that will accept jurisdiction is usually the state where the child has resided for at least six months immediately prior to filing the petition to modify child support.

Methods of Enforcement

Different states have different methods of enforcement. Among others, sanctions and enforcement methods may include: income tax refund capture; bank account levy; driver's license suspension; and passport denial or revocation. In many parts of the United States, loss of liberty is a very real possibility for anyone who refuses to pay child support. A finding of civil contempt can land a non-payor in jail until he or she comes up with at least a portion of child support arrears. This portion is often called a “purge” and is often 25% of the total amount owed, but can be any amount a judge decides is required.

In addition to state remedies for refusal to pay child support there is also a federal remedy. According to this federal law, failure to pay child support, if willful, is a crime when the parent owing support lives in a different state than the parent who is supposed to receive the support. The purpose of the Federal Child Support Recovery Act was to prevent a parent from moving to a different state or a foreign jurisdiction to avoid paying child support.

The penalties available for child support enforcement under the Child Support Recovery Act include prison sentences, fines and restitution. A first offense under the Federal Child Support Recovery Act can result in a prison sentence of up to six months plus fines. A second conviction can result in more jail time and greater fines. Probation can be imposed and can include conditions such as the payment of child support and mandatory employment. A violation of those probation conditions can result in additional prison time.

Controversies

It is easy to accept that as a matter of public policy, parents should support their children. But what if a parent is ordered to pay child support, but is not able to pay? And, even though child visitation and child support is supposed to be separate, what if the parent obligated to pay support is prevented from seeing the child? Do the penalties for nonpayment do anything to help the children in the long run? How does putting daddy or mommy in jail help? What about the unwed father who never wanted to have the child to begin with? Or worse, what about the unwed father who never knew he even was a father until he was served with a complaint for child support?

As always your comments are welcome. Thank you for reading.

And How are the Children?

Masai warriors are widely known for fearsome rites of passage. Tradition demands that to become a warrior you must kill a lion with nothing more than a spear. These fierce fighters embrace their roles as protectors of the tribe.

The traditional greeting between Masai warriors is: And How Are the Children?
The traditional response is: The Children are Well.

If the children are well, then all is well. Can we say that in America? And how are the children? Are the children being looked after, protected, revered? Are they? I have my doubts.

Adriana spent over two years searching for her baby boy. In June of 2009 Adriana's boyfriend, her baby's daddy, was taking care of the baby while Adriana worked. Before she got home the boyfriend fled taking the baby who knows where. Adriana panicked and called the police, reporting it as a kidnapping. Under the laws of that state, as in Florida, when a child is born of unwed parents, it is the mother who has parental rights, not the father. The father can assert paternal rights only after a court orders that he is the legal father. The police, however, told her – sorry ma'am custody is a civil matter, you have to go to court. It was not and is not a civil matter, it is a crime for a parent to abduct a child.

I spoke with Tod on the phone yesterday. His former wife took their daughter out of the country without his knowledge or consent. They have court ordered shared parental responsibility and they have a Parenting Plan incorporated into their Final Judgment of Dissolution of Marriage. But, the mother took their eleven year old daughter out of the country anyway – all the way to Guam. Tod doesn't think they're coming back. So far law enforcement has refused to enforce the Child Pick Up Order, although it was signed by a Hillsborough County judge.

And another one – Marcus from Texas called me. His son is probably in Jacksonville, Florida; but may be with relatives in Boston. He's not sure. With the help of a private investigator he found a current address for his son's mother. Marcus, an unwed father, needs an Order of Paternity before he can hope to get child custody or visitation. He pays his child support though, every week it comes straight out of his check. Marcus will go to jail if he doesn't pay his support. For the past five years, not a single thing has happened to his ex for keeping Marcus' son from him.

And yet another. Joe pays child support for a son he has never seen. Joe discovered he was a dad months after his girlfriend left him. He dutifully sent in the DNA test which he paid for himself. An Order for Child Support went into effect. Joe learned the hard way that child support and visitation are separate. At the court hearing when Joe was ordered to pay child support, the Magistrate refused to listen to anything pertaining to custody or visitation. And so it goes.

And how are the children? You tell me. In a state, in a country, where as a matter of public policy we claim that it is in a child's best interest to have access to both parents – why is it so hard? Neither Adriana, Tod, Marcus, or Joe has been found by a court, or anyone else to be unfit parents. There are not even any allegations of unfitness against any of these parents. So why is it so hard? Why is it so hard for a supposedly civilized society to take care of the children? Are the children well? Nobody knows.