Florida decides at last

Posted on April 22, 2013 by

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by Robert Whiston FRSA   15th April 2013

After a spluttering start, the hesitant legislature in Florida has become the latest US state to adopt ‘shared parenting’. By July 2013 it will become the enforceable child custody law of the state.

New laws are tedious to read but some readers might like to see some of the enlightened wording and salient phrases used:

  1. “It is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing.
  2. There is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.
  3. Equal time-sharing with a minor child by both parents is presumed to be in the best interests of the child unless the court finds that . . .. .  emotional health of the child would be endangered by equal time sharing . . . . [ and there is ]
  4. Clear and convincing evidence of extenuating circumstances justify a departure from equal time-sharing. ..  .. “

Until recently only 5% to 7% of American children lived at least one third (e.g. 35%) of the time with each parent after their divorce. But change is underway in Arizona and in Washington state where 30% to 50% of the children of divorced parents are living at least one third of the time with each parent (George, 2008; Venohr & Kaunelis, 2008).

The same is true of Wisconsin where 30% of the children of divorced parents are living at least with each parent alternatively (Melli & Browne, 2008).

Florida’s custody changes come as part of amendments to Florida’s Uniform Child Custody Jurisdiction and Enforcement Act (Bill No. SB 718) and ‘alimony reform.’

Adopting a truly gender neutral stance, the legislation states:

  • “There is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child. Equal time-sharing with a minor child by both parents is presumed to be in the best interests of the child . . . . “

The measure SB 718, places guidelines for alimony based on the length of marriages and changes the definition of short-term, moderate-term and long-term marriages to less than 11 years, 11-19 years, and 20 or more years, respectively.

Permanent alimony

The idea of having to permanently pay alimony or maintenance is alien and abhorrent to European senses.

Yet that was the situation prior to this legal amendment.

In an emotionally-charged debate, the Florida Legislature in the final vote passed the bill by 85 to 31. The sweeping measure will alter the state’s alimony laws and eliminate ‘permanent alimony.’  Not unnaturally several female legislators criticised the measure, saying it would punish women who chose to remain in the home and help raise children. [1]

The ACFC (American Coalition for Fathers and Children) were delighted to see the provision establishing a presumption of equally shared parenting time after divorce survive the debate. In procedural terms one more vote in the House was needed to send the bill to the Governor for signature and this was achieved. [2]

Capping alimony

From the South Florida Business Journal [3] of Apr 18th 2013, we learn that the bill places in statute a presumption that equal time sharing with a minor child by both parents is presumed to be in the best interest of the child unless the court finds a parent is unfit.

The legislation also places into law a rebuttable presumption against awarding alimony for a short-term marriage but does allow for exceptions. If the court finds that a need exists then the court is able to  determine a monthly award of alimony – but it is capped to no more than 25%  of the obligor’s gross monthly income.

There is also no presumption in favour of either party in mid-term marriages, as alimony would be no greater than 35% of the obligor’s monthly income.

However, for long-term marriages there is a rebuttable presumption in favor of awarding alimony. To overcome the assumption, a party must show clear and convincing evidence there is no need for alimony. And as if signaling that equality has finally broken through in family courts, alimony in such cases may not exceed 38% of the obligor’s monthly income.

Retro-active dimension

The provision of the bill that perhaps is most controversial among opponents is that of retroactive application to divorce agreements which were entered into before July 2013.

For those who wanted changes in the rebuttable presumption one of the most important common sense victories is that when determining alimony it is conceded that “ . . . both parties will have a lower standard of living after the dissolution of marriage than the standard of living they enjoyed during the marriage.”

Florida current law – much like Britain’s – allows a judge to take into consideration “the standard of living established during the marriage” when determining compensatory maintenance (alimony).

Showing to way

Florida, the Sunshine State, has certainly shone a strong light into some deep crevices and has taken in its stride the confusion and disarray that can be sown by allegations of domestic violence being ignored by legislators.

Against a backdrop of scare mongering, the bill that was passed – all 28-pages of it – establishes a presumption of equal parenting in the SunshineState. [4] Those provisions are buried in half a page of the bill and an abridged version containing some of the clauses is shown later in this article.

Too often one reads of reform attempts in various countries being thwarted by concerted attacks focusing on the claim that the reformers are forgetting women and domestic violence, together with assertions that the level of DV will only increase.

Florida may have hit upon a happy compromise that is so equally good to both vested parties, i.e. those who want shard parenting and those vehemently opposed to it on ideological grounds, that its wording may be copied by other countries. The clauses are couched in far better even handed terms than anything yet found in the UK but only in the execution will we discover whether that is true or not.

One suspects that the Floridian legislators were unaware of Prof Roland Proksch’s study for the German Ministry for Justice which found that joint parental custody integrates children and parents and secures their maintenance payments.  He found that sole parental custody excludes the disposed parent and puts the rights of the children to both parents and to access in jeopardy, whereas joint parental custody provides mothers with more opportunities to work to better their own standard of living. [5]

Parental conflicts

How often have we heard that shared parenting is all well and good but it will never work where ‘high conflict’ exists within families. Proksch’s study contradicts that excuse for inaction when he states the empiracal findings showing shared parenting does not exacerbate conflict in stressed families:

  • “Particularly when there is parental conflict, joint custody is clearly better: it benefits the children.”

Extract of the bill

In slightly more detail here are some of the selected key clauses [ emphasis added ]

 Florida Senate – 2013 COMMITTEE AMENDMENT Bill No. SB 718 Barcode 316752, LEGISLATIVE ACTION, Senate House, Comm: RCS, 03/13/2013

  [ emphasis added ]

 http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0061/Sections/0061.13.html

 (c) The court shall determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act, except that modification of a parenting plan and time-sharing schedule requires a showing of a substantial, material, and unanticipated change of circumstances.

 1. It is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing. There is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.

 2. The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. Evidence that a parent has been convicted of a misdemeanor of the first degree or higher involving domestic violence, as defined in s. 741.28 and chapter 775, or meets the criteria of s. 39.806(1)(d), creates a rebuttable presumption of detriment to the child.

If the presumption is not rebutted after the convicted parent is advised by the court that the presumption exists, shared parental responsibility, including time-sharing with the child, and decisions made regarding the child, may not be granted to the convicted parent. However, the convicted parent is not relieved of any obligation to provide financial support.

If the court determines that shared parental responsibility would be detrimental to the child, it may order sole parental responsibility and make such arrangements for time-sharing as specified in the parenting plan as will best protect the child or abused spouse from further harm. Whether or not there is a conviction of any offense of domestic violence or child abuse or the existence of an injunction for protection against domestic violence, the court shall consider evidence of domestic violence or child abuse as evidence of detriment to the child.

 a. In ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child’s welfare or may divide those responsibilities between the parties based on the best interests of the child. Areas of responsibility may include education, health care, and any other responsibilities that the court finds unique to a particular family.

 b. The court shall order sole parental responsibility for a minor child to one parent, with or without time-sharing with the other parent if it is in the best interests of the minor child.

 3. Access to records and information pertaining to a minor child, including, but not limited to, medical, dental, and school records, may not be denied to either parent. Full rights under this subparagraph apply to either parent unless a court order specifically revokes these rights, including any restrictions on these rights as provided in a domestic violence injunction. A parent having rights under this subparagraph has the same rights upon request as to form, substance, and manner of access as are available to the other parent of a child, including, without limitation, the right to in-person communication with medical, dental, and education providers.

 (d) The circuit court in the county in which either parent and the child reside or the circuit court in which the original order approving or creating the parenting plan was entered may modify the parenting plan. The court may change the venue in accordance with s. 47.122.

 (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. A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child. Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, 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.

 (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. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.

 (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.

 (4)(a) When a parent who is ordered to pay child support or alimony fails to pay child support or alimony, the parent who should have received the child support or alimony may not refuse to honor the time-sharing schedule presently in effect between the parents.

 (b) When a parent refuses to honor the other parent’s rights under the time-sharing schedule, the parent whose time-sharing rights were violated shall continue to pay any ordered child support or alimony.

 (c) When a parent refuses to honor the time-sharing schedule in the parenting plan without proper cause, the court:

 1. Shall, after calculating the amount of time-sharing improperly denied, award the parent denied time a sufficient amount of extra time-sharing to compensate for the time-sharing missed, and such time-sharing shall be ordered as expeditiously as possible in a manner consistent with the best interests of the child and scheduled in a manner that is convenient for the parent deprived of time-sharing. In ordering any makeup time-sharing, the court shall schedule such time-sharing in a manner that is consistent with the best interests of the child or children and that is convenient for the non-offending parent and at the expense of the non-compliant parent.

 2. May order the parent who did not provide time-sharing or did not properly exercise time-sharing under the time-sharing schedule to pay reasonable court costs and attorney’s fees incurred by the non-offending parent to enforce the time-sharing schedule.

 3. May order the parent who did not provide time-sharing or did not properly exercise time-sharing under the time-sharing schedule to attend a parenting course approved by the judicial circuit.

 4. May order the parent who did not provide time-sharing or did not properly exercise time-sharing under the time-sharing schedule to do community service if the order will not interfere with the welfare of the child.

 5. May order the parent who did not provide time-sharing or did not properly exercise time-sharing under the time-sharing schedule to have the financial burden of promoting frequent and continuing contact when that parent and child reside further than 60 miles from the other parent.

In another part of the bill it states and this is worth reemphaiosing:

  •  a.   The safety, well-being, and physical, mental, and emotional health of the child would be endangered by equal time sharing, that visitation would be presumed detrimental consistent with s. 39.0139(3), or that supervised visitation is appropriate, if any is appropriate.
  • b. Clear and convincing evidence of extenuating circumstances justify a departure from equal time-sharing and the court makes written findings justifying the departure from equal time-sharing; c. A parent is incarcerated; d. The distance between parental residences makes equal time-sharing impracticable; e. A parent does not request at least 50 percent time sharing; f. A parent has been convicted of a misdemeanor of the first degree or higher involving domestic violence; or g. A parent is subject to an injunction for protection against domestic violence.

E N D 

Ref:

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0061/Sections/0061.13.html 

http://www.fathersandfamilies.org/2013/04/21/florida-house-bill-231-establishes-presumption-of-equally-shared-parenting/   

See also House Bill 231, Florida House of Representatives.

Footnotes:


[1] “Florida lawmakers pass alimony reform, send bill to Gov. Scott”,  April 19th 2013 http://www.bizjournals.com/jacksonville/blog/morning-edition/2013/04/florida-lawmakers-pass-alimony-reform.html

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