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Child Custody and Visitation in Florida was recently addressed by the Florida Court of Appeal in a case captioned Beck v. Lewis. In this case the father appealed the temporary order of the court which created a temporary timesharing schedule for the parents. The trial court granted temporary primary custody of the child to the mother. The Court of Appeal affirmed this temporary order. The temporary order terminated a prior court order that awarded temporary timesharing to the child’s grandmother.

The trial court order terminated the grandmother’s timesharing, establishing the mother as the primary custodian of the child, and awarding transportation expenses. The order provided for the father to have timesharing with the child one weekend per month, during the summer and during holidays. The father works on weekends as a DJ. The father challenged the trial court’s order based upon the fact that the timesharing schedule impairs his ability to earn a living on weekends.

The Florida Court of Appeal ruled on Child Custody and Visitation in crafting a final order, the Court should take into account the financial impact of the parenting plan on the father. The Court also pointed out that in entering a final judgment, the trial court may revisit its earlier decision based upon the evidence that is presented to it at the final hearing.

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Child Custody and Visitation for Same-Sex Couples in Florida was recently discussed by the Florida Court of Appeal in a case captioned Springer v. Springer. In Springer v. Springer a child was born to a biological mother while she was in a same-sex relationship. Her partner asked the Court to recognize a parenting plan that both parties entered into. The parties started their relationship in the State of Ohio. The Biological Mother became pregnant by a donor’s sperm. The Former Partner had no biological connection to the child. The parties entered into a timesharing agreement which contained a provision that the parties were to share timesharing and parental responsibility. The parties separated after they moved to Florida. The parties did not marry and the child was not adopted by the Former Partner. The Former Partner sought time-sharing and parental responsibility of the child.

The Florida Court of Appeal ruled that a Child Custody and Visitation co-parenting agreement between a nonparent and a biological parent is unenforceable under Florida Law. The Court ruled that the time-sharing and parental responsibility provisions contained in the Florida Statutes only apply to parents, not to nonparents. A nonparent in a same-sex relationship has no standing to assert parental responsibility or time-sharing rights. A birth mother’s rights that are protected by the Constitution. These Constitutional rights prevail over a partner’s claims, when that partner is not the biological or legal parent. A partner who does not have a biological or legal connection to a child does not have Child Custody and Visitation rights under Florida law.

To speak with a same-sex divorce attorney in West Palm Beach, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

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In a recently decided divorce case, the Florida Court of Appeal decided who gets to keep the family home when there is a divorce. In a case captioned Walker v. Walker, the Florida Court of Appeal stated that as a general rule, absent special circumstances, the trial court should award to the primary residential parent exclusive use and possession of the marital home until the youngest child reaches the age of majority or is emancipated, or the primary residential parent remarries. Special circumstances include where the parties’ combined incomes are insufficient to meet their normal living expenses, obligations, debts and the cost of maintaining the marital home. Exclusive use and occupancy will not be awarded where the former husband and former wife do not have a sufficient combined income to maintain the marital home and meet their obligations. Florida statutes require courts to assess the desirability of maintaining the marital home as a place for the children to live when it is equitable to do so, it is financially feasible, and it is in the children’s best interest. In reaching this decision, divorce courts are to first decide whether it is in the best interest of the children to stay in the marital home, and, if not, whether other equities are served by giving the other spouse exclusive use and possession of the parties’ marital home.

To speak with a divorce attorney in Palm Beach Gardens, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

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Imputation of alimony was recently discussed by the Florida Court of Appeal in a case captioned Frerking v. Stacy. In this case, the former wife appealed a trial court’s decision that denied her request for permanent alimony and imputed income to her. The parties were married for nineteen years. The Florida Court of appeal pointed out that permanent alimony is intended to provide for the needs and necessities of life as they were established during the course of the marriage. Permanent alimony is presumed to be appropriate after a long-term marriage. A marriage that lasts seventeen years or more is considered to be a long-term marriage. A trial court errs when it fails to award permanent alimony where there has been a long-term marriage, unless the presumption favoring this award is overcome by competent substantial evidence.

In this alimony case, the trial judge found that former wife could be immediately employed as a full-time public-school teacher. The trial court overlooked the fact that the former wife had never been a full-time school teacher. Courts can impute income to unemployed and underemployed spouses when their loss of income is voluntary and the unemployment or underemployment is due to the party’s failure to use diligent and good faith efforts to find employment that pays a salary at a level that is equal to or better than the income that the spouse previously received. The party alleging that income should be imputed has the burden of proof. In imputing income, a court is required to look at the spouse’s occupational qualifications and recent work history and the prevailing level of earnings in the commun ity. The Florida Court of Appeal stated that a party’s use of diligent and good faith efforts to find employment does not include retraining. A party is only required to find a job for which the party is already qualified. Accordingly, the trial court was reversed in this case and the matter was remanded to the lower court for proceedings consistent with ruling contained in this opinion.

To speak with an alimony attorney in Boca Raton, Florida, contact Matthew Lane & Associates, P.A. at (561) 328-1111.

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In a modification of alimony proceeding, a trial court can temporarily modify an alimony award while the award is being appealed. It cannot alter the actual alimony award during the pendency of the appeal. In Horowitz v. Horowitz the Florida Court of Appeal recently stated: “[T]he trial court may conduct a hearing on the modification petition and issue orders consistent with Rule 9.600(c). It may not, however, enter a final judgment disposing of the modification petition until the appeal is final and our mandate issues. Thompson v. Stewart, 569 So. 2d 1372 (Fla. 4th DCA 1990); Campbell v. Campbell, 436 So. 2d 374 (Fla. 5th DCA 1983); Kalmutz v. Kalmutz, 299 So. 2d 30 (Fla. 4thDCA 1974)…We begin with the principle stated by this court in Kalmutz: [W]hen the jurisdiction of the appellate court attaches it is exclusive as to the subject covered by the appeal; so that modification of an order under appeal would be beyond the jurisdiction of the trial court from the very innate nature of the appellate jurisdiction and from the very practical viewpoint that there is no order to be modified until the appellate court determines what the order actually is. Kalmutz, 299 So. 2d at 32 n.l…

Citing Rule 9.600(c), we have noted “[w]hen the trial court temporarily alters the provisions in the final judgment for the purpose of protecting the welfare or rights of a party pending appeal, the terms of the judgment are not affected.” Goodman v. Goodman, 664 So. 2d 975, 975 (Fla.4thDCA 1995) (emphasis added)…To the contrary, the subsequent modification proceeding is neutral and indifferent as to the legal correctness of the prior adjudication and correctly proceeds on the theory that, whether or not the prior adjudication was correct on the facts then found and adjudicated, those facts have now changed and the present factual circumstances differ so substantially and materially from those underlying the prior adjudication that a different level of support is warranted as to the future…As outlined, the trial court can consider the former husband’s petition and, if appropriate, fashion a temporary order which may be revisited or reduced to permanent rulings once the pending direct appeal has been disposed of by this court. Horowitz v. Horowitz, 39 Fla. L. Weekly D987, 987-988 (Fla. 4th DCA May 14, 2014)

To speak with a divorce lawyer in Palm Beach, Florida, contact Matthew Lane & Associates, P.A. at (561) 651-7273.

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Modification of Alimony should be granted retroactively to the date the petition was filed if the reasons justifying modification existed at that time. In a case captioned Nuttle v. Nuttle the former husband appealed a final judgment modifying his alimony obligation. The Florida Court of Appeal reversed the trial court’s decision and remanded the case back to the trial court to correctly modify the former husband’s alimony. In 2015, the parties entered into a marital settlement agreement under which the former husband agreed to pay his former wife durational alimony. Before the trial court signed the final judgment, the former husband filed a supplemental petition for modification of alimony based on the fact that the former husband was notified by his employer that he was going to be terminated from his employment. Eleven months after the parties entered into the marital settlement agreement, the trial court entered a final judgment that incorporated the terms of the marital settlement agreement and reserved jurisdiction to hear the former husband’s modification of alimony. The former husband then filed an amended supplemental petition for modification of alimony.

The trial court only granted the former husband’s supplemental petition for modification of alimony back to the date on which the former husband filed the amended supplemental petition for modification of alimony, rather than the date on which the former husband filed the original supplemental petition for modification of alimony. The Florida Court of Appeal reversed stating that modifications of alimony should be granted retroactively to the date of the filing of the original supplemental petition for modification of alimony if the need for the alimony reduction existed at the time of the filing of the original supplemental petition for modification of alimony. Under Florida law, a court may increase or decrease alimony retroactive to the date of the filing of the supplemental petition for modification when it is equitable to do so in light of changed circumstances or a changes in a parties’ financial ability to pay alimony. Where a payor’s need for a reduction in the amount of alimony he pays exists at the time he filed his original petition for modification of alimony, then his alimony should be retroactively reduced as of the date of the filing of the supplemental petition.

To speak with a divorce attorney in Palm Beach County, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

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A Child Custody and Visitation case involving emergency intervention by the Court was recently decided by the Florida Court of Appeal in a case captioned McAbee v. McAbee. In this case the parents married in South Carolina and divorced in Virginia. They have one child. The mother alleged that the father sexually abused the child in Virginia and in Florida. The father admitted to sexually abusing the child in letters that he sent to the mother. The father also documented to having a sex addiction. The father later denied the sexual abuse and claimed that the sex addiction was a reaction to taking certain medication. The mother filed for custody in Virginia and a psychologist stated that the father was no threat to the child. The father moved to Florida and filed for divorce in Virginia. The mother also moved to Florida. The Virginia court granted the father supervised time-sharing. The mother petitioned for relief in Florida and the case was dismissed. Later on, the Virginia court gave the father graduated timesharing. The mother filed more petitions in Florida and the Florida court denied her petitions. The mother moved to South Carolina with the child. The Virginia court then awarded the father sole custody. The mother sought a protective order in South Carolina, which was denied. The mother then filed an action in Broward County, Florida. The Broward County judge found that the child had been abused. The court issued an injunction and ordered the child to have no contact with the father.

The Florida Court of Appeal reversed and remanded the Child Custody and Visitation case back to the trial court because the trial court failed to communicate with the Virginia court (in which custody proceedings had been ongoing for years) before issuing its ruling. This violated the UCCJEA which requires the trial court, under its temporary emergency jurisdiction provisions, to confer with the trial court in Virginia before it made its timesharing determination. The trial court was required to immediately contact the Virginia court when it learned of its timesharing orders.

To speak with a Child Custody and Visitation attorney in Palm Beach Gardens, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

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A Child Relocation case was recently decided by the Florida Court of Appeal in a case captioned Castleman v. Bicaldo. In this case, the mother emigrated from the Philippines to the United States in order to marry the Father. As a result of the marriage, she was able to obtain a Green Card. After 26 months of marriage, the Father filed for divorce. The trial judge issued a Final Judgment in which the Court ruled that if Wife’s citizenship application was denied, she would be allowed to move to the Philippines with her child. The trial court found that the relocation statute did not apply to persons who are deported. The Court of Appeals reversed this judgment.

The Court of Appeal held that the Florida Parental Relocation Statute applies to persons wishing to relocate voluntarily as well as to those who are forced to relocate by the government after their marital status is changed. The Florida Child Relocation Statute contains ten specific factors that trial courts are required to apply in making determinations regarding child custody relocation. These ten factors are to be applied in cases involving involuntary as well as voluntary relocations.

Additionally, the trial court in this child relocation case erred in making the determination that it would be in the child’s best interest to relocate with the mother in the event that she was deported. The Florida Court of Appeal stated that trial courts are not equipped a “crystal ball” that enables to determine that relocations will be in the best interests of children at unspecified times in the future. The Court of Appeals stated that trial courts are unable to predict how future changes might affect the statutory factors.

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A Child Custody and Visitation case involving private schooling was recently decided by the Florida Court of Appeal. The father sought to enroll the children in a private Christian school. The final judgment of dissolution of marriage awarded the parents shared parental responsibility for the children. In 2017, the children attended public school at Palmetto Middle School and Palmetto Elementary School. The parents could not agree on which middle school the children should attend. The mother preferred Palmetto Middle School and the father wanted the children to attend a private Christian school. The father stated that he was willing to pay for the cost for the children to attend the private school.

The mother filed a motion for contempt of court against the father for taking one of the children to be tested to determine his eligibility to attend the private school. The father filed a motion in which he requested that court order the children to attend private school. The father alleged that the mother refused to even discuss the children’s enrollment in the private school. The father argued that the private school was in the children’s best interests and that it was a better fit for the children. The trial court ruled in favor of the father and permitted the children to attend private school. The court required the mother to cooperate with its decision and denied the mother’s motion for contempt.

Regarding Child Custody and Visitation, the Florida Court of Appeal affirmed the trial court and ruled that when the parents are awarded shared parental responsibility and are unable to reach an agreement on a decision affecting the children’s welfare, they should present the issue to a trial court for resolution. The trial court is then vested with the responsibility of making the determination as to what is in the best interests of the children. The best interests of the children are the standard that trial courts are to utilized to in making determinations concerning the welfare of the children. The Court ruled that the father had the ability to pay for the private schooling and that it was not error for the trial court to make its determination ten months prior to the date that school was going to start and three weeks prior to the deadline to apply.

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A Modification of Child Custody and Visitation case was recently decided by the Florida Court of Appeal. In a case captioned Puhl v. Puhl the Florida Court of Appeal held that the failure to keep other parent informed of issues concerning a child was an insufficient basis, in and of itself, to modify the parties’ timesharing schedule. In Puhl v. Puhl the trial court entered a Final Judgment of Dissolution which incorporated the parties agreed upon parenting plan. The parenting plan provided for shared parental responsibility and also provided that if the parties were unable to agree upon the child’s healthcare, education or religious upbringing, the mother’s decision would prevail. A year after the divorce was granted, the Father moved to modify the parties’ parenting plan. The Father alleged that the Mother was deciding healthcare issues pertaining to the child without consulting him and that the child was receiving unnecessary medical treatment.

In regards to a Modification of Child Custody and Visitation, the Florida Court of Appeals stated that in order to modify a timesharing schedule, there must be a material, substantial, and unanticipated change of circumstances, and the proposed modification must be in the best interests of the child. The burden of proving that there has been a material, substantial and unanticipated change of circumstances is upon the party seeking the modification. It is an extraordinary burden of proof. The Florida Court of Appeal stated that even if a parent does not keep the other parent apprised of the minor child’s activities and the other parent has the ability to keep themselves informed, this only constitutes a communication problem and is not a basis to grant a modification of the timesharing schedule. Accordingly, the Florida Court of Appeal denied the father’s request to modify the parties’ timesharing agreement.

To speak with a Modification of Child Custody and Visitation attorney in Palm Beach County, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.