Two Mysteries of Florida Family Law Rules

In the course of doing business as a legal document preparer, my customers often ask me questions about procedure and why things are the way they are. I am allowed to provide consumers information regarding procedural rules, timelines, etc.; as long as I refrain from offering legal advice. Most people that contact me do not want legal advice anyway, they just don't know how to fill out the forms. And that's why we're here. The reason for this entire industry is that consumers either don't know how to prepare their own documents, don't have the time, or cannot possibly afford an attorney. A large part of the documents I prepare are family law documents, such as divorces, and supplemental petitions for modification of existing orders.

Mystery Number One:

If a couple is divorcing, they have no children, and they have already split all their assets, why does the State of Florida require a family law financial affidavit?

This is a basic divorce scenario where both parties want to go their separate ways, and have no disputes over anything. In the past couple of years, the requirement for a financial affidavit in a Simplified Dissolution of Marriage (which has never been so simple in my opinion - and I rarely have a request for these forms) changed so that divorcing couples using the simplified process can waive the financial affidavit requirement. However, the huge drawback for couples using the simplified process is that they both must appear in court. And, although, they may not have any disputes over property or children, they still may not want to be in the same room together ever again, and they may not be sure that the other party is going to be completely reliable, and if the other party doesn't show up, then there will be no divorce. And they will very likely have to pay another filing fee to get the divorce completed. So, many couples who qualify for the simplified process, use a petition for dissolution with no children and no property instead. That way, the more motivated party, can make sure he or she is the petitioner, and make sure that the divorce is completed, and the marriage is done and over, regardless of whether the other party cooperates or not. But, these couples are required to file a financial affidavit. Why? Customers ask me all the time. And my only answer is that the State of Florida says so, and beyond that I have no idea.

I recently helped a customer whose ex-husband to be lives in another country. No children, no assets, no debt. She sent him the divorce petition and an answer and waiver of appearance for him to sign. Which he did. But, when she tried to schedule a hearing, the clerk of court refused to schedule it because her husband had not filed a financial affidavit. And then the clerk of court directed her to file a motion to compel him to file a financial affidavit. Since he is in another country how can the State of Florida compel him to do anything? Sounds like a legal question, and I have no idea what the answer is. The bigger question is the central mystery here. Why is it the business of the State of Florida to know the financial information of a consumer, just because they are going through a divorce? If you know the answer, please comment.

Mystery Number Two:

This second mystery is much worse. Frequently, when unwed parents part company the mother (usually) files for child support through the Florida Department of Revenue. The father receives a notice in the mail that he must appear for the child support hearing and to bring all his pay stubs and proof of income. Many fathers are happy to go because they think that they can also request child visitation (timesharing) at the same hearing. Au contraire mon frere! However, most of the time these hearings are held before a General Magistrate, not a Judge. A General Magistrate also called a Hearing Officer is usually an attorney appointed by the Chief Judge to hear uncontested family law matters. So when the parties go in front of the General Magistrate, the court's assumption is that there is no dispute. The father owes child support, and that's the end of it. The General Magistrate is not allowed to hear any disputes, not allowed to hear anything related to child visitation, and the fathers come out of those hearings with their heads reeling. When the father tries to bring up child visitation or custody, the General Magistrate refuses to hear it. Most often the General Magistrate does not explain to the father why he can't hear it (because he's not allowed to); and doesn't tell the father what he can do to make sure that he has the legal right to see his own children and not be treated like an ATM.

Why does the State of Florida persist in allowing the fathers to be treated this way? If you know the answer as to the why, please comment.

There is a solution, however, and I truly hope this is helpful to someone. If you are caught in the situation described above: File a Petition to Determine Paternity and Related Relief; and a proposed Parenting Plan. The outcome will be an order naming you as the legal father, with the legal right to spend time with your children. The Parenting Plan is the schedule of visitation.

Substantial Change in Child Custody

"Substantial change" relative to child custody is a phrase that we often hear, but do you know what it really means? Apparently it means a lot of things ...

A Single Factor Might Not Constitute "Substantial Change"

In reviewing child custody cases it seems that a combination of several change factors is most likely to constitute a substantial and material change in circumstances. In Ogilvie v Ogilvie, 954 So 2d 698 (1st DCA 2007) the Court held that the parties failure to communicate; or the relocation of one or both of the parties; are factors that are each insufficient, by themselves, to constitute substantial or material change. However, the Court noted that “parental alienation” by itself may be sufficient to prove substantial and material change. Similarly in Morales v Morales, 915 So 2d 247 (5th DCA 2005), the Court found that, an acrimonious relationship alone, between former spouses is not substantial change.

The pertinent part of the Florida Statutes is as follows:
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. Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the minor child, 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.
  

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.
  

• (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?

Baby Mama Drama? You can make it stop.

In theory there is no longer a social stigma for having children out outside of marriage. However, unwed fathers suffer more legal punishments than they could have ever imagined. If an unmarried couple with children breaks up, the father is often left out in the cold. Besides the general heartbreak of a relationship gone bad, the father is almost always separated from his children. And then, typically, the mother makes all of the parenting decisions by herself. If the mother truly has the best interests of the children in mind, she will allow the father to spend as much time as possible with the children so that the children are not needlessly traumatized by the separation.

It is a fact of modern life that sometimes relationships don't last, and quite often children are raised by a single parent. With the parents and extended family all working together to do the right thing for the children  -- children adjust.

Unfortunately, even despite good intentions, people do the wrong things. After a break up there is almost always hurt feelings between the couple, and they may forget their first priority is caring for their children. I hate to say, but it is often the mother who will keep the children from the father for capricious reasons. I also hate to say that the fathers may resent the break up and make only minimal efforts to stay in touch with their children.

After the break up things may go along this way with no court intervention and little constructive guidance. The mother may grow resentful at the expense of raising children without the father's financial support, and disallow visits unless he pays. The father often feels that the money that he gives the mother for child support is not being spent on the children anyway, so why bother?

Out of frustration or disdain the mother may seek financial help from the government. She might apply for medicaid for the children; food stamps; and cash assistance. During the application process the mother must disclose the identity of the father. Since there is no court order for child support the government will set about putting a court order in place. The government entity in Florida which is designated to collect and enforce child support is the Florida Department of Revenue (DOR).

There is a court hearing of sorts -- sometimes. Some fathers only receive a notice in the mail and never have a say at all. When there is a DOR Administrative hearing it is in front of a General Magistrate who is appointed to hear uncontested family law matters. A General Magistrate is an attorney appointed by the Chief Judge, and has not been elected. Since it is the business of the General Magistrate to hear only uncontested family law matters, no argument is allowed. If the father brings up the fact that the mother is not allowing him to see his children at all, the General Magistrate does nothing. This hearing is not for the purpose of visitation or timesharing -- only child support. The father is told to hire an attorney if he wants to see his children. Now the father is doubly confused and frustrated. He thought he was coming to court to have a chance to set up visitation, and finds out that all they want is his money.

The father may contact attorneys for help. He is again frustrated when he discovers that he needs to pay a $1500 - $3000 retainer and then they'll see what they can do. For many, this amount, in addition to the child support ordered is out of reach, an impossibility. At this point, he may give up altogether, and hope and pray that he can get along with the mother well enough that she will allow him to see his kids. Sometimes this works for a while -- sometimes this arrangement lasts years.

When and if this arrangement unravels, the father is again left out in the cold. Many fathers find themselves faithfully paying support and have no contact whatsoever with their children. The government, the courts, and the Department of Revenue, specifically do nothing to alleviate the pain. The children are often deprived of contact with their fathers for no reason other than the father does not know what he can legally do to gain access to his children; and the father cannot afford an attorney. The guidelines for all of the legal aid societies throughout the state are so narrow that it is nearly impossible for a father in this situation to get any free or low cost legal assistance.

Finally out of desperation the father searches for an answer. Sometimes he has lost his job, and knows that he may go to jail if he cannot pay his support. Other times there is a new man in his ex's life and access to his children has been sharply curtailed. Or the mother has applied for an increase in child support. After asking everyone he knows, and multiple internet searches he finds the answer.

The form that is central to his goal is called: Petition to Determine Paternity and Related Relief. The name of the form is so confusing and deceiving, he would never have thought of looking for something with that name. That form and other family law forms are available as free downloads on the Florida Supreme Court's website. Once the father has an order from a judge, naming him as the legal father, he can exercise his paternal rights. He will no longer be at the will of a capricious ex-girlfriend. He can see his children and become involved with their lives without fear that the mother will change her mind at the last minute, and deny him.

The name of the form is so counter intuitive that often even when fathers find the form, or are told of the process skepticism remains. A father may well wonder why he should petition for paternity when there is no question of his paternity. He often wonders whether a DNA test is required. He knows his name is on the birth certificate and he is paying child support so why would he need to petition for paternity? All good questions, and we don't know all the answers. We don't know why they named the form or the process something so obscure. Only if the mother disputes paternity will a DNA test be needed.

The easiest way to understand what the form and procedure is all about is: Petition to Determine Paternity and Related Relief is like a divorce for people who were never married and had a child together. The outcome is a court order stating that the father is the legal father. A Parenting Plan, the schedule of visitation, is usually filed along with these documents.

Florida legal document preparers can help pro se litigants prepare these forms. Or pro se litigants can do it completely by themselves.

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.