The new parenting law is not the panacea we crave

          CS/CS/SB 2532, a/k/a Chapter 2008-61 of the General Laws of the State of Florida, a/k/a the NEW Parenting Law, signed by the Governor in May 2008, became effective on October 1, 2008.  This is the law that we hope will bring fairness to the traditional custody dispute, bring the warring factions to the negotiation table as equals, and force parents to play nice with each other.  If the new law fulfills its promise, parents will no longer be able to clog up the courtrooms with their claimed intentions of good faith toward one another, and instead will focus them on demonstrating how they have done things in the past as a precursor to the future.  Florida family law stakeholders have been craving just such a law for years, and in a largely unexpected move the Legislature and Governor made it happen this year.

          Is this the cure-all, the panacea that has been dreamed about by so many?  Have we turned a corner in family law litigation that spells an end to the divisiveness and downright nastiness that can sometimes develop in all-out custody wars?  In a word: “no”.  I see this new law as a few steps forward and a few steps backward, leaving us largely in the same place that we were before.  We’ve changed some of the terminology that fueled much unnecessary litigation, but there are still areas of the law that are ripe for litigation, and we all know that there are people out there that will litigate no matter how insignificant the benefit.  The newest terminology for such people is “high-conflict,” and we meet them every day, sometimes even when we look in the mirror.

          What the law has created is yet another layer to penetrate before a Circuit Court Judge can be called upon to make a ruling in that subset of cases in which the lawyers simply could not get the litigants to put their heads together (read: “high conflict cases”).  Once upon a time, we had only one barrier to getting a ruling from a judge in Florida, the Judicial Assistant, who would guard the Judge’s calendar like a dragon defending the maiden in the tower.  The Judicial Assistant certainly was a formidable bodyguard, but it was inevitable that a hearing would be granted and a ruling be had.  High conflict people would have a decision that, like it or not, was the last word, and in my opinion that was precisely what was needed because high conflict people who cannot recognize the harm that they cause require unequivocal rulings.  Potential litigants who subscribe to the truism that court-ordered parenting plans are inherently inferior to parent-formulated plans never put themselves in that position in the first place, and those that could not be made to understand needed a firm ruling that put an end to the hand-wringing.  The system worked and cases moved through the courts much more rapidly than is seen today.

          In more recent years, the use of mediation developed as an alternative to divisive family litigation, but in creating a requirement that parties mediate before a hearing, we inadvertently put up another barrier to insulate high-conflict people from the harshness of a ruling.  The use of mandatory mediation has grown over the years to include not only an attempt to reach a global settlement of all issues, but also to deal with temporary relief and enforcement matters, as more and more often Courts are requiring that the parties mediate before a specific motion is heard.  At times I have even found myself being required to mediate a discovery dispute before a hearing would be given, but that practice, at least locally, seems to have fizzled out.  Even more recently we have seen Case Managers adding one additional level to overcome, as in the guise of moving cases more efficiently through the system there has been created a checkpoint scheme that attempts to iron out problems as and before they develop.  This is certainly born of a noble intention, but from a practical standpoint the high-conflict cases, for which clear-cut rules need to be laid that leave little chance for potentially harmful “creativity”, are simply being herded through a switchback that does nothing but delay the inevitable and drive up the already high cost of family law litigation.

          The new law has spawned yet another barrier to a judge’s ruling, the requirement of a licensed psychologist to assist the parties in creating a parenting plan.  The new law calls for the creation of a parenting plan in every case involving minor children, which plan must include a timesharing schedule.  This really is nothing new, as it is just giving a different name to the visitation schedules and rulings that micromanage parenting that we have become used to for years.  What is new, though, is the required involvement of a licensed professional when the parties cannot work out something on their own.  Once again, in those cases involving intelligent and child-centric individuals, the use of a professional to assist them in difficult situations is a prudent and worthwhile exercise, and one that such individuals would likely seek out without the imprimatur of a legal requirement.  But for high-conflict individuals, aren’t we just creating one more forum for them to demonstrate their inability to cope with the concept of putting their children ahead of themselves?  Personality traits of high conflict people are easily recognized by mental health professionals, and when they make a recommendation that is meant to protect the children from being harmed by those traits it is rarely one that the high-conflict person can accept, thus leading them inevitably to a judge’s ruling.  For such cases, what has really been created is an expense that has no benefit to the plan of reducing divisiveness, and so bad mannered people will display bad behavior with no consequences.  I fail to see any real benefit to mandating professional involvement as an intermediate stage for high-conflict cases.

          As an experienced family law litigator I will, as I have in the past before the new parenting law, help my clients develop parenting plans pre- and immediately post-suit, I will steer them toward mental health professionals when they need some assistance, and I will recommend mediation when I recognize that that tool might have some value.  But there will always be those clients and opposing lawyers, who will make such measures unproductive, the high-conflict people.  For those of them that cannot be made to see how their destructiveness is negatively affecting everyone, especially the children, the best method available to resolving conflicts is the Circuit Court Judge exercising all of his or her constitutionally and statutorily granted powers to make things happen.  It is important that we do all that we can to have such cases resolved before they jam up court dockets, but by the same token we should not be insulating the courts from dealing with difficult cases, as that is what we expect judges to do.  Inevitably there will be bad results and hurt feelings, but I submit that in high-conflict cases such bad results and hurt feelings were going to occur nonetheless.  Taking away the barriers to getting to the judge will have the benefit of reducing the time such cases can clog up the system, and the cost of litigation should drop as a result.  I am disappointed in the new law because it does not really fix the problem of unnecessary litigation, but rather it inherently draws it out.

          There is much to be happy with the new law.  Most notably, the § 61.13(3) factors that emphasized subjective beliefs of future good faith have been largely replaced with requirements that the parties demonstrate past actions as a herald of the future.  This newer scheme puts to work the often-quoted truism that the past is the best predictor of the future, and for that it brings more certainty into the system.  The ones that will be negatively affected by this change will be the sincere and honest Johnny-come-lately parents, those who have been “poor” parents in the past but who truly would become better and more attentive when the family splits up.  We have all had clients who made the claim that they would mend their past errors.  I believe that we can safely say that such individuals actually exist in about 10% of the cases where it is claimed.  But even for those who fit that category, the new law really does not change very much at all.  If Johnny-come-lately does not have a high-conflict person as their co-parent then it is likely that he/she will be given an opportunity to showcase their previously hidden talents because the intermediate steps are geared toward giving such “second chances”.  But the presence of at least one high-conflict individual in the mix does not bode well for a benevolent resolution.

          Practically speaking, the new law changes very little.  Before October 1, the Court had three available options for parental responsibility (shared, shared with ultimate decision-making authority, or sole), three labeling alternatives (primary/secondary residential parents, co- or rotating primary, or sole), and an infinite number of timesharing schemes.  After October 1, the Court has the same three options for parental responsibility and the same infinite number of timesharing schemes, but no labels.  We will still be fighting over days, when all is said and done, but we just won’t have anything to call the parent that gets the lion’s share of the time with the kids, if any.  The smart litigants will recognize this and avoid the fight, while the high-conflict folks will stay true to form and fight for the sake of fighting or whatever other twisted motivation they may have.  Claims of abuse and bad faith will still abound, claims of lying and manufactured evidence will still be made, and claims of alienation and manipulation will still be put forth.

          I am not convinced that the new parenting law will bring about any real change in the way in which we practice.  As I mentioned before some terminology has changed, but for all that has changed there is much that has remained the same.  I would personally like to see us return to a time when the path to a judge’s harsh (for some) rulings was not studded with fences, ravines and obstacles, so that the truly high-conflict people would have fewer opportunities to play the system.  It is true that some high-conflict people just don’t get it and won’t get it even when judges send them harsh rebukes, but giving such people hope that they may be able to get something they want simply because they make it difficult for the other side to get through all of the barriers does not help the situation either.  The definitive rulings that Circuit Court Judges are mandated to make bring closure in one way or another, while the intermediate methods that we now employ often only delay the inevitable and create additional tensions and costs than would otherwise appear.

          I pray that I am wrong.

            Prenuptial agreements are hardly the cure for all of the above, but for those who had the foresight to get a prenuptial agreement and are now facing divorce there is at least some certainty among uncertainty.  For someone in the midst of financial and emotional crisis any bit of certainty can be a blessing.  Prenuptial agreements, when thoughtfully and thoroughly drafted and finalized, can provide a great deal of guidance in a difficult time, and since they are made when the spouses generally have each other’s best interest in mind they can help achieve the most fair result when both spouses are looking out for only themselves.

            Last year the Florida Legislature enacted the Uniform Premarital Agreements Act (the Act), bringing Florida in line with a growing number of states adopting the legislation.  The Act gives more teeth to prenuptial agreements, closing off many of the loopholes that resulted in much litigation over the years.  Prenuptial agreements that are created with the formalities specified in the Act are afforded strong legal presumptions of validity and enforcement.  Specific requirements for financial disclosure are now in place, bringing even more certainty to the process.

            So what can you do with a prenuptial agreement?  The most common uses of a prenuptial agreement include:

• providing for the preservation of wealth by designating what assets and debts are non-marital in nature;
• allowing people with children from prior relationships to make provision for those children upon death, free from claim of their new spouse;
• setting forth the manner in which each spouse will be financially supported, or not, upon the termination of the marriage by divorce.

But this just scratches the surface of what is available for inclusion in prenuptial agreements.  Less traditional uses of a prenuptial agreement include:

• establishing how a family business will be formed, capitalized and run during the marriage, and then laying rules for the continuation or dissolution of the business upon the termination of the marriage;
• setting forth the goals that the family will work together toward achieving and the values that they will maintain in good times and bad;
• determining in advance and at a time of no rancor how the family will raise their future children (religious upbringing, forms of discipline, etc.)
• establishing how and under what circumstances the spouses will jointly own and manage property and investments.

The items that can be included in a prenuptial agreement are generally limited only by the imagination of the parties and the skill of the drafter. 

          The fact that no consideration except the marriage itself is necessary to formalize a prenuptial agreement makes it attractive to the financial secure, and the fact that it is extremely flexible and forward-looking makes the prenuptial agreement attractive to the rest of us.  In the past, when divorce was rare, prenuptial agreements were seen as only appropriate for the super wealthy.  Now they can be seen as prudent for nearly everyone.

          One thing we should learn from this current economic downturn is that such contractions are inevitable on both a global and personal scale.  It is prudent to take into consideration that things will look bleak at some point in the future and to plan accordingly.  Nobody wants to think about the breakup of the marriage before it has even begun, but the benefits of doing so cannot be overstated.  Setting down during good times what your objectives will be in bad times makes too much sense to be ignored.

          If you know of someone who is going to become married in the near future then advising them to consider a prenuptial agreement may be a better gift than the crystal goblets that you were thinking about.  Direct them to a Marital and Family Law Attorney with experience in drafting and formalizing prenuptial agreements.  Most wedding gifts get used in the early years of the marriage and often it is forgotten what the gifts were and who gave them.  But the gift of advising a prenuptial agreement has the benefit of being inexpensive in the short term and tremendously valuable in the long term.

          Fear not, those of you that are lamenting not having entered into a prenuptial agreement before you became married.  There is a way for you to accomplish what should have been done before the marriage.  A postnuptial agreement can be created and formalized which will allow you to set down the same forward-looking goals as with a prenuptial agreement.  The major difference between a prenuptial agreement and a postnuptial agreement, besides the timing of its entry and the inapplicability of the Act, is that the marriage itself is not consideration for a postnuptial agreement.  With a postnuptial agreement some valuable consideration must be given in order to make the contract valid.  Legal consideration can take many forms, though, and a good attorney can help you to fashion a binding postnuptial agreement that protects like a prenuptial agreement.

The Florida Supreme Court, in Burger v. Burger, 166 So. 2d 433 (Fla. 1964), has said that it is in the best interest of society that a judicial determination of the invalidity of the marriage be obtained. The Court considered that the state has a substantial interest in the stability of the domestic relationship, so in a case where two people innocently contract marriage when they are incapable of doing so, it is to the best interest of the community as well as the parties that all doubts regarding the legality of the marriage be determined. Either party can, and according the Florida Supreme Court should, bring an action to annul the marriage as being void, and when that has been accomplished then the parties may validly marry one another. Alternatively, you can raise the invalidity of the marriage as a defense to a divorce action.

Can a spouse challenge the validity of a present marriage by asserting that a prior divorce was not validly obtained? The court, in Keller v. Keller, 521 So. 2d 273 (Fla. 5th DCA 1988), held that the husband was not allowed to assert the alleged invalidity of his Mexican divorce from his first wife as a defense against second wife's claim for alimony and property in dissolution of marriage action, where his second wife did not take any part in the procurement of the Mexican divorce, there was nothing in the record to indicate that even if she knew of the divorce, she had no reason to know it was not a valid divorce, and parties were married about 20 years with no allegation that the marriage was void until the claim was made for alimony and property distribution. A similar conclusion was reached in Lambert v. Lambert, 524 So. 2d 686 (Fla. 4th DCA 1988), in which the husband tried to assert that his Dominican Republic divorce was invalid and therefore his current marriage of 13 years was invalid as well. This was rejected.

What Makes Up a Fair Settlement?

Filing The Divorce Petition

Answering the Petition

Special Interrogatories

Finalizing The Divorce

Once the Divorce Is Granted

Why Do We Have an Adoption Statute?

1. The state has a compelling interest in providing stable and permanent homes for adoptive children in a prompt manner, in preventing the disruption of adoptive placements, and in holding parents accountable for meeting the needs of children;
2. An unmarried mother faced with the responsibility of making crucial decisions about the future of a newborn child is entitled to privacy, has the right to make timely and appropriate decisions regarding her future and the future of her child, and is entitled to assurance regarding an adoptive placement;
3. An unmarried biological father has an interest that acquires constitutional protection when he demonstrates a timely and full commitment to the responsibilities of parenthood;
4. Adoptive children have the right to permanence and stability in adoptive placements, and when there are sibling groups to be adopted they have a right to be maintained as a group;
5. Adoptive parents have a constitutional privacy interest in retaining custody of a legally adopted child.

Who May Be Adopted?

Who May Adopt?

Who May Not Adopt?

Finding a Child To Adopt

Starting Legal Proceedings

Consent To The Adoption

1. The Mother of the child;
2. The Father of the child IF
   1. child was conceived or born while the father was married to the mother; OR
   2. The minor is his child by adoption; OR
   3. The child was established through court proceedings to be his child; OR
   4. The father has filed an affidavit of paternity pursuant to statute; OR
   5. In the case of an unmarried biological father, he has acknowledged I writing that he is the father of the child, has filed the acknowledgement with the Office of Vital Statitstics within the required timeframes, and has complied with the following:
      1. If the child is placed with adoptive parents more than 6 months after the child’s birth, an unmarried biological father must have developed a substantial relationship with the child, taken some measure of responsibility for the child and the child’s future, and demonstrated a full commitment to the responsibilities of parenthood by providing financial support consistent with his ability (if not prevented from doing so), and either:
         1. Regularly visited the child at least monthly when physically and financially able to do so and when not prevented from doing so;
         2. Maintained regular communication with the child or the person having care and custody of the child, when physically or financially unable to visit the child or when not prevented from doing so;

      2. If the child is less than 6 months old at the time of placement with the adoptive parents, an unmarried biological father must have demonstrated a full commitment to his parental responsibility by having performed all of the following acts prior to the time the mother executes her consent for adoption:
         1. Filed a notarized claim of paternity with the Florida Putative Father Registry;
         2. Upon service of a notice of an intended adoption plan or a petition for termination of parental rights pending adoption, executed and filed an affidavit in that proceeding stating that he is personally fully able and willing to take responsibility for the child, setting forth his plans for the care of the child, and agreeing to a court order of child support and a contribution to the living and medical expenses incurred for the mother’s pregnancy and the child’s birth;
         3. If he had knowledge of the pregnancy, paid a fair and reasonable amount of the expenses in connection with the mother’s pregnancy and the child’s birth when not prevented from doing so.
3. The minor if 12 years of age or older;
4. Any person lawfully entitled to custody of the child
5. The court, if the person having custody does not have the authority to consent to the adoption.
6. If a parent of the child cannot be located to give his or her consent, a good faith effort to locate must be undertaken. The effort to locate must follow certain guidelines, which in recent years have been beefed up to prevent fraud. The diligent search required by the statute is critical if the integrity of the adoption is to be maintained.

Cost of Adoption

Adoptions Are Confidential

Rights of the Biological Parent(s) Once the Child Is Adopted

Rights of the Adoptive Parent(s) Once the Child Is Adopted

Financial Benefits of Adoption

How is The Child Affected By Adoption?

1. Payments must be in cash or the equivalent (e.g., check, money order). Payments may be made to third parties on behalf of the person receiving alimony. Transfer of services or property, execution of a promissory note or other debt instrument, or allowing the free or reduced cost use of property does not qualify as alimony for tax purposes.
2. Payments must be made pursuant to a written divorce or separation instrument. Voluntary payments are not considered alimony for tax purposes under the Internal Revenue Code. Qualifying divorce or separation agreements are:
   • A decree of divorce (i.e., final judgment of dissolution of marriage) or a written instrument incident to such a decree.
   • A written separation agreement. Oral agreements do not qualify.
   • Any other decree requiring a spouse to make payments for the maintenance or support of the other spouse, including all temporary relief orders.
3. The written instrument does not designate the payments as not includible in gross income for the recipient. In other words, if the parties or the court has designated in writing that the payments are not includible as gross income for the payee, then they are not alimony for tax purposes.
4. The spouses cannot be members of the same household at the time the payment is made. Physical separation within a single dwelling unit is not sufficient. There must be two separate households.
5. The liability to make payments must terminate upon the recipient’s death. A payment that is due and owing regardless of the death of the recipient is not alimony but is rather the payment of a debt, for tax purposes. There is a vehicle, known as an alimony trust, which can be used to avoid this requirement.
6. Payments specifically designated as child support are not alimony or separate maintenance payments for tax purposes. To the extent payments are reduced due to a contingency relating to a child, such as attaining a certain age, dying, marrying, or graduation from school, the payments will be classified for tax purposes as child support, and will not be alimony. Any contingency clearly associated with a child has the same effect, such as payments that terminate in the same month as a child's 18th birthday.
7. The payor and payee must not file a joint income tax return.

Alimony Recapture Rule

Special Rules for Temporary Alimony

1. The requirement of living in separate households is not necessary.
2. A court order, and thus pending litigation, is required.
3. Recomputation and recapture is inapplicable.

Life Insurance Awarded as Support

Child Support

Property Transfers and Divisions

Capital Gains

ACTION

1. Check with your child's friends, school, neighbors, relatives, or anyone else who may know of your child's whereabouts. Ask them to notify you if they hear from your child. Make sure you notify them that your child has run away.
2. Report the runaway to your local law enforcement agency. In some cases an Alternate Response Officer (A.R.O.) can take your report immediately over the telephone. If you prefer, a deputy will be dispatched to your home to complete the report. Have clothing and jewelry descriptions available. Make an inventory of all items the child has taken.
3. Keep a record of everything you do and everyone you notify, including the date and time. Write down the officer's name, ID number, the deputy's district telephone number, and the report number.
4. Provide the law enforcement agency with a recent photograph of your child.
5. The Lee County Sheriff's Office enters your child's name into the National Crime Information Computer (N.C.I.C.) and the Florida Crime Information Computer (F.C.I.C.). This information will not give your child a police record, but it may aid in your child's safe return.
6. The Florida Department of Law Enforcement in Tallahassee (904-488-5224) has a clearinghouse on missing children. Make sure you call them and pass on the necessary information about your child.
7. Call or check local spots that your child may frequent. If desired, call local hospital and treatment centers. If your child is employed, call the employer or co-workers. Make sure you tell them your child is a runaway and request their assistance.
8. Contact the National Center for Missing and Exploited Children at 1-800-843-5678 (TDD 1-800-826-7653) and file a report with their office. They will also be able to provide you with information on services they offer.
9. Call your local runaway hotline or youth shelter. In Lee County, the Oasis Shelter has 24 hour telephone service. They can be reached at 332-2251. You may wish to discuss counseling after your child has been located, or other services they may offer.
10. The National Runaway Switchboard also has a hotline. Call 1-800-621-4000. You can ask if your child has left a message, and leave a message for your child.
11. Make fingerprints and dental records available to law enforcement. This information may need to be added to existing computer entries.
12. If desired, make posters or fliers containing a photograph of your child, along with physical identifiers and who to contact if your child is seen. These fliers can be placed in store windows (with permission), truck stops, youth-oriented businesses, hospitals, treatment centers and law enforcement agencies.

WHEN YOUR CHILD RETURNS

PREPARATION....JUST IN CASE

1. Keep a complete written description of your child, including hair and eye color, height, weight, date of birth, and specific physical attributes, such as scars or birthmarks.
2. Take color photographs of your child every six months. Head and shoulder portraits from different angles, such as those taken by school photographers are preferable.
3. Make sure your dentist prepares a full dental chart on your child and updates them with each exam. If you move, get a copy of these dental records to keep in your files until a new dentist is found.
4. Find out from your doctor where your child's medical records are located. All permanent scars, birthmarks, broken bones and medical needs should be recorded.
5. Arrange with the Sheriff's Office to have your child fingerprinted. The agency will give you the fingerprint card. They will not keep a record of your child's prints.

WHAT TO DO IF YOUR CHILD IS ABDUCTED

• Check with all relatives and friends in an effort to locate the parent. Keep a record of who you spoke to and what they told you, as well as the date and time. Try to determine if the parent has moved or left his job.
• File a missing persons report. This information you provide should be as accurate and complete as possible. The Sheriff's Office then enters this report into the Florida Crime Information Computer (FCIC) and the National Crime Information Computer (NCIC). An “Amber Alert” is issued statewide, and the report is forwarded to the Missing Persons Unit for additional follow-up and investigation. This report should include:
• Names, addresses and telephone numbers of all relatives and friends of the abducting parent, along with a list of where they may go for assistance.
• A complete description of the child and abducting parent, along with photographs and a vehicle description (including tag number).
• Copies of all court orders or custody agreements.
• Flag the child's birth certificate through the Office of Vital Statistics. (This record is often needed to enroll a child in school or to obtain a passport.) This should be done even if the child is pre-school age.
• Flag the child's school records with the School Board and request that you and the Sheriff's Office be notified if a records transfer is requested.
• Flag the child's medical and dental records through the providers so that you and law enforcement will be notified if an inquiry is made. If possible, attempt to flag the abducting parents' records also.
• Call the abducting parent's last known employer and ask them to notify you or law enforcement if a work reference check is requested.
• It may be necessary for you to obtain a court order authorizing law enforcement officers to take the child into custody. Without this order, law enforcement has no authority to take the child. Additional legal action may be necessary if the child is found outside the State of Florida. Your attorney can prepare these documents and have them signed by a judge. Check with the Missing Persons investigator to see if additional court orders are needed.
• You may also want to notify additional supporting agencies to request their assistance. Some of these agencies are:
• National Center for Missing and Exploited Children 1-800-843-5678. You should file a report with this agency. They can also provide you with literature you may find helpful, such as "Parental Kidnapping" (a handbook for parents) and "Just In Case" (Guidelines on using the Federal Parent Locator Service).
• Missing Children Information Clearinghouse (MCIC) thru the Florida Department of Law Enforcement. 1-904-488-5224.

When you file the Missing Persons Report, you will be asked if you wish to prosecute the abducting parent. This decision needs to be made very carefully. What you decide can determine how involved law enforcement agencies will become in pursuing this investigation. A sworn statement containing the information about the abduction will be obtained from you. If criminal prosecution is pursued, the investigator may decide to request a warrant for the arrest of the abducting parent. This warrant will result in the parent being entered into the Florida Crime Information Computer (FCIC) and the National Crime Information Computer (NCIC).

Prenuptial Agreements

Post-Nuptial Agreements

Adoption

Stepparent Adoption

Grandparent Adoption and Temporary Custody

Sometimes a permanent solution like adoption is not needed, but rather a temporary granting of custodial rights is proper. This type of temporary custody is available for members of the child’s extended family, including siblings, grandparents, aunts, uncles and cousins. Our attorneys are able to help.

Surrogacy

Re-Adoption

Paternity Establishment

Paternity Disestablishment

Establishment or Modification of Parenting Plan

Establishment or Modification of Child Support

Relocation of Minor Children

Pre-Divorce Counseling

Establishment of Support Irrespective of Divorce

Divorce

Marital Torts

Alimony Modification

Enforcement of Family Court Orders

Dependency and Termination of Parental Rights

Estate Planning