Other - Overview
In addition to divorce, paternity and the other types of family law matters handled by our office, we also handle cases of Modification or Enforcement of Final Judgments including Petitions for Relocation, temporary custody by extended family members, and Step-Parent/Second Parent Adoption.
Grandparent Custodial Issues
There are two different reasons that grandparents request our assistance. In the first case, sometimes when a parent dies, that parent’s parents are being denied visitation with their grandchildren by their former son or daughter-in-law. There could also be instances where there is such estrangement between grandparents and their own adult child that they are not being permitted contact with their grandchildren. Unfortunately, the law cannot help you. Florida once had a statute that provided for grandparent visitation, but the statute was declared unconstitutional by the Florida Supreme Court, who held that the statute violated parents’ rights to decide what is in the best interest of their own children.
On the other hand, grandparents are all too often these days called upon to raise their grandchildren. In some of these cases, it may be advisable or even necessary for the Grandparent to obtain legal guardianship status on a temporary basis. This is relatively easily accomplished.
Step-parent adoption is handled in our office. If both biological parents are living, the parent who is giving up their parental rights must sign Consent to the Adoption.
Today more than ever, we live in a mobile society. People get transferred to jobs in other states; people find new opportunities for life and love with new spouses after divorcing and those new spouses sometimes have lives and jobs a county, a state, or even a continent away from where you live now. A couple that was divorced in Florida and shares children are not free to pick up and move with the children. You may have had a settlement agreement that said nothing about whether you, the parent who spends most of the time with the children, can relocate outside of Miami-Dade, Broward or Palm Beach County. Or the agreement might have given some restriction as to whether relocation is permitted. But in October 2006, the Florida legislature enacted a new statute that changed the law in Florida on this important issue.
Both parents are considered to have equal rights when it comes to sharing the major life decisions that affect the children. That is the basis of our concept of “Shared Parental Responsibility”. Therefore, it only makes sense that one parent cannot simply move hundreds or thousands of miles away with the children without the consent of the other parent. After all, such a move will undoubtedly impact the other parent’s relationship with the children. How could it not? So it should come as no surprise to discover that this post-dissolution/post-paternity issue is a highly contested one. It’s very difficult for parents to agree on a compromise to this situation. One parent has a legitimate desire to move to take advantage of what is perceived to be an opportunity of a lifetime. The other parent has a legitimate desire not to lose the regular contact with the children that they had previously enjoyed and substitute in its place a schedule of longer contact periods sandwiched between long periods of separation.
If you were divorced (or have a settlement agreement related to a paternity action) prior to October 1, 2006, and your agreement has a relocation restriction, then you will continue to be governed by the restriction contained in that agreement. For example, your divorce was final in July 2006. Your agreement states that “neither party shall move their residence with the children outside of the tri-county area”. If you were living in Aventura at the time of your divorce, and you now want to move up to Palm Beach Gardens to take a great new job, you’re free to do so. You’re within Palm Beach County, which is within the restriction contained in your agreement. But if your agreement says nothing about a relocation restriction, you are now constrained by a 50-mile radius drawn around the residence where you lived at the time of the agreement/judgment. In the scenario above, you would be limited to moving no more than 50 miles north of Aventura, which would be substantially south of Palm Beach Gardens.
The new statute sets a 50-mile radius as the acceptable range within which you can relocate without consent of the other parent. If you wish to relocate outside that 50-mile radius, you must file a Petition for Relocation with the Court. Once the Petition for Relocation is filed, the other parent has 20 days to answer the petition. Assuming the Petition is contested, the case will proceed on a special fast track. A hearing on a request for temporary relocation must take place in 30 days and the final hearing must be held within 90 days.
There are many factors that will determine whether a relocation petition will be successful. The degree of involvement of the other parent (the one not seeking the relocation) is key to the petition’s success. Parents who are not very involved in their children’s lives, who don’t exercise all of their time-sharing with their children, who don’t take their children to the doctor when they’re sick, or participate as much in the children’s activities, and parents who don’t pay their child support all set themselves up as losers in a relocation action. The relocating parent must also have a detailed plan for substitute time-sharing that will continue to foster a meaningful relationship with the non-relocating parent. The relocating parent will likely have to bear all of the transportation cost (unless the financial situation is heavily weighted in favor of the non-relocating parent). Of course, there needs to be a legitimate reason for the move. Generally, it needs to improve the relocating parents’ quality of life, and it needs to be in the best interest of the children. Of course, what is in the best interest of the parent with whom the children spend the bulk of their time is often in the best interest of the children as well.
Post Judgment Modification / Enforcement
The only constant is change. Heraclitus (ancient Greece)
For some, the day their divorce is final is the last day they ever see or speak to their ex-spouse. There are no obligations to tie them together, no alimony to pay, no children to co-parent. For these clients, the case is over, and will never be reopened. But for a large percentage of divorcing couples, there is a continuing relationship. One former spouse may be paying alimony to the other for a period of many years after the divorce is final. If there were minor children, there is a substantial ongoing co-parenting relationship. Whatever their particular connection, they all face the same issue: changing circumstances.
There are almost an unlimited number of circumstances that can change over time that cause a divorced client to seek a modification of the Final Judgment. You lost your well-paying job and had to find another one at a lower salary. Your spouse won the lottery and no longer needs the alimony. Your ex says that your teenage son is too difficult to handle and she wants him to come and live with you for the next 3 years. You’re remarried and your new husband just got a fabulous new job making a small fortune, but it’s in New York, and you want to move there with the children. Any of these and a thousand others could be a reason that you need help.
For all of these kinds of issues, it is your burden as the party seeking relief from the Court to prove that there has been a substantial change of circumstances since the entry of the original Final Judgment that justifies modification. When it comes to a modification based on a change of income, you must show that the change is permanent and involuntary in nature. Quitting your job is voluntary, and will not justify relief. Being fired or laid off is involuntary and probably will get you help.
For any and all of the above, there is a procedure for Modifying your Final Judgment. It is much like an original family law case, but it’s much more limited in scope. Usually you are dealing with a single issue. There is still the initial filing of papers, and it must be served on your former spouse. There is a period of discovery where each side provides the documents and information requested by the other side. Mediation will still be required before a trial can be scheduled.
Your divorce decree was and always will be an enforceable Court Order. Family Courts retain the ability to enforce their Judgments for as long as necessary. For the same group of clients who sometimes need a modification, there is always the possibility that your former spouse will not comply with the terms of your divorce. Parents don’t always pay their child support or alimony. Deeds to transfer title refuse to be signed. Time-sharing is denied and shared parental responsibility is absent. Schedules are not adhered to. There are unlimited ways in which a Final Judgment might need to be enforced.
Enforcement is generally a faster proceeding than other family law matters. A Motion is filed with the Court, detailing the problem. It is mailed to your former spouse. The Judge sets a hearing and there is no requirement for mediation. The Court can compel compliance with the Judgment by all sorts of means, depending on the nature of the problem. Child Support enforcement is the Court’s biggest concern. Hearings to enforce the payment of child support are scheduled quickly. The Judge will often set a specific amount that the parent paying child support must pay within a very short amount of time (sometimes right at that moment) or go to jail. Tax refunds can be intercepted and driver’s licenses can be suspended for non-payment of child support. Additional wages can be garnished to pay off past due amounts.