Parental Rights

May 29, 2020

Cam Unemployment Lower Your Child Support?

There are cases where a non-custodial parent is unemployed and has little or no income. Even a person with little or no income can still have an obligation to pay child support. This is because a parent’s child support obligation can be calculated based upon his or her imputed income, as opposed to actual income. Imputed income is income that the court determines an individual should be making with a reasonable effort.

When child support is calculated a number of factors are used to determine each party’s obligation. The parents’ income, the number of children, and insurance expenses are the major elements in determining one’s obligation. It is not infrequent that a parent will manipulate the system in an attempt to lower his or her income which is aimed at reducing that parent’s child support obligation. This is accomplished in a number of ways. People that own their own business have found numerous ways to receive what would otherwise be income through creative accounting. One way that the court system counter’s this is through the use of imputed income. Sometimes this involves imputing minimum wage. Other times, it is much more complicated and a vocational evaluator may be used.

Although unemployment can no doubt affect one’s income adversely, it may not necessarily affect his or her child support obligation. The courts do not always use imputed income to determine one’s child support obligation. Most situations where it is used involve a parent that is unemployed or underemployed voluntarily. In my practice, I have primarily seen imputed income used where a parent is unemployed and the court will impute minimum wage. There are situations in which much higher income has been attempted to be imputed. In one divorce case with no children that I handled, a Wife of an attorney, requested a vocational evaluation to determine the attorney’s true earning capabilities. A court will usually inquire as to why a parent is unemployed or underemployed and whether or not there is justification for it. A case in which unemployment is caused by an accidental injury would be a likely example of one that may be justifiable. A layoff or company downsizing could also account for why an Obligor is unemployed. Trying to prove that someone is underemployed can be difficult and expensive. One has to prove that there is work available and that the Obligor turned it down. Most of the cases I have handled involving the Dept. of Revenue are examples of situations where it is impractical or not economically feasible for the Dept. of Revenue to pay to have a vocational evaluation. One example of a recent case I came across where there is little doubt that a father has a legitimate excuse (arguably) for not working is where a father must stay home to care for a young child with Cerebral Palsy.

May 22, 2020

What Can Happen When a Parent Violates a Parenting Plan?

by Neil Weinreb

Florida requires parents who are divorcing or are subject to a paternity action to have a parenting plan in place. A parenting plan can be agreed to or simply entered by the court. However, once the plan is entered into the court as an order, it is enforceable through the court system. Violations of parenting plans can be insignificant, or they can lead to great interference with the rights of a parent and a child.

In Florida, timesharing is taken into account in calculating child support for a parent that exercises at least twenty percent of the overnights with a child. Florida’s child support guidelines specifically account for such. However, not every parent takes advantage of all of the overnights that they are awarded. Normally, you cannot retroactively adjust child support. However, failure for a parent to exercise substantial timesharing can have a serious economic impact on that parent, as the Florida Statutes authorize retroactive adjustments.

A parent’s failure to regularly exercise the time-sharing schedule set forth in the parenting plan, a court-ordered time-sharing schedule, or a time-sharing arrangement exercised by agreement of the parties not caused by the other parent which resulted in the adjustment of the amount of child support pursuant to subparagraph (a)10. or paragraph (b) shall be deemed a substantial change of circumstances for purposes of modifying the child support award. A modification pursuant to this paragraph is retroactive to the date the noncustodial parent first failed to regularly exercise the court-ordered or agreed time-sharing schedule. F.S. 61.30(11)(C).

May 15, 2020

HOW IS CHILD SUPPORT TIED TO TIMESHARING?

by Neil Weinreb

Child support is essentially a payment from the higher income parent to the lower income parent. Child support and timesharing have an interesting relationship. The law values the child and parent relationship. A parent’s right to timesharing is not dependent upon being current in child support. It is a frequent mistake among individuals to assume that timesharing can be denied if an Obligor parent fails to keep up with his or her child support. Such has no such relationship to Florida law.

Another misconception is that child support must go to the child specifically. However, it is a general purpose reimbursement which covers the cost of living in a household with children. The amount of child support paid by each parent is dependent upon the amount the Florida child support guidelines determine. The number of overnights the child or children spend with each parent is one of the factors used to decide a parent’s child support under Florida’s guidelines. There is a chart that is published within the Florida Statutes that shows the amount of child support a child is entitled to.

Florida law requires that generally, where there are minor children then child support should be paid. The principle behind this general rule is that entitlement to support belongs to the children and parents cannot decide not to pay support. There are situations in which a parent does not have a child support obligation. In Florida, this must either be because the amount of support owed is very minimal, as determined by the guidelines, or the specific reasons must be enumerated in the child support order. The law allows up to a 5% deviation from the guidelines without further enumeration. Florida has a form known as a Child Support Guideline Worksheet which is required to be filed in every divorce and paternity case where child support is determined. The guidelines account for some of the specific costs of supporting a child, such as health insurance and uncovered medical expenses. As long as a parent is awarded at least 20 percent of the overnights, overnights are a specific factor used to determine a parent’s support. Items like rent, electricity, water, and food are essential items that are not specifically accounted for in the guidelines. Other items that are specifically accounted for under the guidelines are taxes, daycare, and medical costs.

May 6, 2020

Is Adultery a Factor in a Florida Divorce?

by Neil Weinreb

Adultery can certainly be a factor in a divorce. However, adultery is only relevant for limited purposes. Florida is sometimes referred to as a no-fault divorce state. This only means that proving fault is not required to obtain a divorce. There are only two reasons that are acceptable in Florida to obtain a divorce. The most common reason is that the parties have irreconcilable differences. The other is that a spouse is mentally incompetent.

A Court can consider adultery from either spouse, as well as the circumstances involved in making a determination concerning alimony. A considerable amount of discretion is placed in a judge’s hands in determining if alimony should be paid and if so, how much should be paid. F.S. 61.13(3)(f).

Although technically, adultery is not a factor that the court considers in making custody (now know as timesharing) decisions, adultery can be a factor regarding custody issues. The Florida Statutes do allow the court to consider the moral fitness of a party in making a custody determination. F.S. 61.13(3)(f). If a parent can show the court that a parent’s adultery will affect the child, the trier of the fact can consider whether a party’s adultery impacts the best interest of the child or children. In the case Jacoby v. Jacoby, the court determined that the mere possibility of adultery having a negative impact regarding timesharing is not sufficient to make the adultery a consideration. Packard v. Packard, 697 So.2d 1292 (1^st DCA 1997). The important dynamic is whether a party’s adultery will have a direct effect on the welfare of a child. Dinkel v. Dinkel, 322 So.2d (Fla. 1975).

July 9, 2018

New Ruling by Florida Supreme Court Gives A Remedy For Biological Fathers in Paternity Cases

by David M. Goldman

In Simmonds v. Perkins, No. SC17-1963 (Fla. 2018), the Florida Supreme Court decided to take up the question of whether a biological father is entitled to rebut the common law presumption that the mother’s husband is the legal father of a child born to an intact marriage, where the mother or her husband object to allowing such rebuttal. The Court held that the biological father may rebut the presumption of legitimacy when he has “manifested a substantial and continuing concern” for the welfare of the child. The presumption of legitimacy may be overcome by a “clear and compelling reason based primarily on the child’s best interests.”

This case involved the child’s mother, Treneka Simmonds, and biological father, Connor Perkins, and their daughter. When Perkins and Simmonds were together, Perkins was never told Simmonds was married to a man named Shaquan Ferguson. When Perkins did find out Simmonds was married, she told him she was married for “immigration purposes” and was going to get a divorce. Perkins was there when the child was born, taken the child to the doctor, enrolled the child in daycare, and even had sole physical custody for awhile. The child called him “daddy.” Perkins’ mother is also known as her grandmother.

Perkins decided to file a petition to determine paternity, timesharing, and child support. Simmonds moved to dismiss the action based on it being barred by the common law presumption of legitimacy because Simmonds was married to Ferguson. Perkins then added Ferguson as an additional party, amended his petition to seek disestablishment of Ferguson’s paternity, and alleged it would be in the child’s best interests for him to be recognized as her legal father. Ferguson also moved to dismiss under common law. The trial court dismissed Perkins’ petition because of previous Fourth District precedent stating that the putative father cannot seek paternity when the child was born in an intact marriage and the married woman and her husband object.

June 28, 2018

Angelina Jolie and Brad Pitt Custody Battle May Involve Parental Alienation

by David M. Goldman

In 2016, Angelina Jolie filed for divorce from Brad Pitt after he got into an altercation with his son Maddox on a plane that resulted in an FBI investigation. You may have heard about the custody battle with their six children that has ensued. Recently, a judge apparently ordered “new restrictions” regarding Angelina’s participation in how Brad interacts with the children.

The Judge wrote, “[The children] not having a relationship with their father is harmful to them. It is critical that each of them have a healthy and strong relationship with their father and mother.” The Judge also state, “If the minor children remain closed down to their father and depending on the circumstances surrounding this condition, it may result in a reduction of the time they spend with [Jolie] and may result in the Court ordering primary physical custody to [Pitt].” The Judge created a visitation schedule for Brad to see his children over the summer with the children continuing to receive therapy.

It seems the Judge is trying to prevent parental alienation. Parental alienation is the psychological manipulation of a child into showing unwarranted fear, disrespect or hostility towards a parent and/or other family members. Check out 9 warning signs that parental alienation might be present here.

January 18, 2018

Emergency Child Pick-Up Orders Can Offer Parents a Method to Enforce Custody Orders

by David M. Goldman

When can you ask the Court for an emergency child pick-up order? If your ex-spouse or, if you have not been married, the other parent takes your child for timesharing and does not return the child, what can you do? What are your options if the child is taken out of the State of Florida?

What is an emergency pick-up order? An emergency pick-up order is an order signed by the Court that directs the sheriff or other law enforcement officer to take a child from the person who has physical possession of your child and deliver the child to your custody. The process is started by filing an Emergency Verified Motion for Child Pick-Up Order. You must attach a certified birth certificate if you are the birth mother of a child born out of wedlock and no court order of paternity exists. If you have a judgment establishing paternity or a court order showing you have legal custody, you attach a certified copy to your motion.

Compliance with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a must to ensure that Florida has jurisdiction. See Fla. Stat. 61.514. Florida must be the child’s home state within 6 months before the commencement of the proceeding. The conditions in 61.514 specifically indicate under what circumstances the Court can take jurisdiction.

December 4, 2017

Can My Parental Rights be Terminated? Grounds for Termination of Parental Rights in Florida

by David M. Goldman

Being served with a termination of parental rights petition is the first step to a complicated process in the state of Florida. A termination of parental rights petition must include facts alleging that at least one of the grounds listed in F.S. 38.806 has been met and that granting the petition would be in the manifest best interests of the child or children as listed in F.S. 39.810. No answer to the petition is required, but if you answer, the petitioner will need the court’s approval to amend their petition later.

Grounds for termination are as listed:

(1) Voluntary surrender: When you have signed a written surrender of their parental rights to the child(ren)

July 15, 2016

Parental Rights, Sex Crimes

by David M. Goldman

In 2009, a 14 year old girl was raped in Massachusetts and became pregnant. Her attacker, Jaime Melendez, pled guilty to rape charges and was sentenced to 16 years probation. He was also brought into family court and ordered to pay $110 per week in child support, according to a paper published by the American Bar Association. It was bad enough that the sentence was only 16 years probation. Later, Melendez sued the victim in order to have visitation with the victim’s child since his parental rights were still intact. Melendez felt that if he was going to pay child support, he should be allowed to spend time with the child.

Many states have laws that restrict the rights of a father that produces children as a result of a sexual assault. Of these states, nearly none terminate the rights of the rapist outright without the victim making some sort of effort. Parental Rights termination is something that should be considered carefully, but this is probably an instance where termination of parental rights should be simple and easy to accomplish.

There is a list of things under Florida law that can result in termination of parental rights. Chapter 39 authorizes the termination of parental rights if clear and convincing evidence shows that the child was conceived as a result of a sexual battery. See F.S. 39.806. According to Florida law, “[i]t is presumed that termination of parental rights is in the best interest of the child if the child was conceived as a result of the unlawful sexual battery.” A conviction, or a guilty plea being entered, is enough proof to satisfy the statute. Having to share parental rights with a person that violated you, only serves to continue the agony of the victim. At the Law Office of David M. Goldman, PLLC, we have experienced Jacksonville family lawyers that can help you terminate the parental rights of your attacker, and help reclaim your peace of mind.

May 2, 2016

Co-Parenting Tip: Attitude is Everything

by David M. Goldman

Much that happens in life depends on the attitude that we have about things. Co-parenting and raising children properly after divorce or a relationship with the other parent has ended is no exception. Having the right attitude is key. I’ll share a brief example using my son.

My 15 year old is genuinely a good kid. He’s silly and acts very much like a teenager, but inexplicably woven into the fabric of who he is lies a level of maturity that is beyond his age. My son loves football and plays running back. A few weeks ago, I don’t remember the reason why, but he missed practice twice during the week, including the last day of practice before the game on the following Saturday. As a result, the coach put him on the line to block rather than allowing him to play his normal position. Now, he was upset about it, but you would never have known by watching him block with all his might, which is what he did all game long. He played his part for the day, even though it wasn’t his normal position or one he was happy with. What mattered most to him was winning. He and his teammates still had a common goal, no matter what position he played that day.

The coach commended him after the game for having the heart that he does, and also explained why he did what he had done by putting my son on the offensive line. The following week, he was back to scoring touchdowns as running back. (His team won the championship in their division by the way.) Way too often parents lose sight of the overall goal—happy, healthy children. They are petty and resentful, and don’t work together to ensure the success of their children. As co-parents, you must see the other parent as a teammate. You cannot continue to hold grudges and view them as an enemy. Having that attitude will hinder the team’s performance and make winning nearly impossible.