Articles Posted in Custody/Time-Sharing

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The Miami-Dade area will be host to a landmark custody battle that will decide the fate of not only the litigants involved but of Native American-Florida relations.A West Miami-Dade resident will be fighting for the custody of his two children in a Miami-Dade court, after having been repeatedly denied parental rights in Native American Tribal Court. The mother of his children and he never married. She is a member of the Miccosukee tribe. After their relationship dissolved the two shared custody and visitation of the children in an informal and unofficial weekend-by-weekend manner.

In October, relations went sour between the two and the woman filed for a petition for temporary custody in Miccosukee tribal court in which the petition was immediately granted and a court date was set. The man reacted by having his attorney file a petition in Miami-Dade and the two of them attended the Miccosukee tribal hearing. The man’s attorney was not allowed in the courtroom based on his “failure to speak the Miccosukee language”. The hearing was conducted wholly in the tribal tongue with only a brief translation. The woman was awarded full custody.

In this case, the central focus will not be the Indian Child Welfare Act of 1978, which so often comes into play during adoption and custody battles regarding Native American children, but rather the Uniform Child Custody Jurisdiction and Enforcement Act which provides the courts jurisdiction in deciding custody disputes involving citizens of different states or countries. The act follows federal law and accordingly Indian reservations, the Miccosukee included, are treated as sovereign states.

The key provision of the law: the court with jurisdiction is the one from where the children resided “within 6 months” of the “commencement of the proceedings” for child custody. The man is contending that the woman does not and has not lived on the reservation; the woman is obviously claiming she has resided on the reservation and that she has been the sole financial provider for the children.

The state of Florida officially recognized the now well known reservation known as the Miccosukee Tribe of Indians of Florida in 1957. The reservation was recognized by the federal government in 1962.

These types of custody battles are not uncommon in states with large Indian populations. In South Florida, however, this case is likely a first, according to the attorneys. The latest census puts the number of Native Americans in Florida at less than 10,000. The Miccosukees are the Miami-Dade area’s biggest local tribe with a population of 600.
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This blog has previously discussed changes to Florida’s alimony laws (Senate Bill 718). Governor Scott vetoed this bill which included, as well, updates to Florida’s child custody laws.Specifically, child custody schedules were updated. Previously, there was never a codified mandate or guide that the custody break-down be 50/50 with both parents; rather judges just deemed what is right by a scattered amount of standards. Senate Bill 718 codifies a presumption that there be a 50/50 time sharing agreement between parents as, according to the legislature, it “is in the best interest of the child”. The bill does provide for basic and necessary exceptions or considerations to this presumption however.

Some of these considerations include: physical, mental and emotional safety of the child; distance makes the sharing too burdensome; a court order has prevented contact with one parent; a parent is incarcerated; domestic violence has occurred; clear evidence that extenuating circumstances require a modification of the schedule; or a parent does not wish to retain his/her level of custody.

Govenor Scott has admitted he does approve of “several forward looking elements of this bill” but he recognizes the importance alimony plays to many households. Currently, only four states have ended permanent alimony. Gov. Scott further criticized the Florida bill for its retroactive application which damaged ideas of fairness and “could result in unfair, unanticipated results.”

No Custody for Rapists

This April, the Florida legislature approved another more specific child custody bill which has been long overdue. The bill, SB 964, would prohibit a convicted rapist from acquiring child custody rights over the child conceived from the attack. The Florida House unanimously passed SB 964 with a vote of 115-0. The bill will be going to Governor Rick Scott and will take effect upon his expected signature.

A staff report in support of the bill reported that only 19 states terminate parental rights of convicted rapist for any child conceived through their crime. Now, with Florida having passed the bill, a startling 30 states (as well as the District of Columbia) remain which have no law on the books that bars a rapist from seeking visitation or custody rights. These states are as follows: Arizona, Arkansas, Colorado, Georgia, Hawaii, Idaho, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nebraska, New Hampshire, North Carolina, North Dakota, Ohio, Rhode Island, South Dakota, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia, and Wyoming.

Previously, rapists could seek custody of the child born from their attack. In some cases, this can even be used as a backdoor bargaining chip to discourage the victim from reporting the incident, testifying, or participating in sentencing hearings.
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On April 10, 2013, a couple accused of kidnapping their own children were arrested in Tampa after having been returned to the U.S. by Cuban authorities.The couple had officially lost custody of their two young boys on April 2. Last year, police found the couple at a hotel in Slidell, Louisiana, acting abnormally, claiming to be “contemplating their ultimate journey” and discussing the Armageddon. Upon further investigation, the couple was found to be in possession of weapons and narcotics. At that point the children, ages 2 and 4, were removed from the couple’s care and placed in foster care under CPS (Child Protective Services). The father spent the next week in jail and then, upon his release, visited the foster home his children were taken to and demanded them back at gunpoint.

The family’s flight to Cuba began after the Lousiana Family Court gave permanent custody of the boys to the father’s parents. The day after the ruling, the father went to his parents’ home in Tampa and kidnapped the children after tying up his own mother. The parents had their escape planned, and in the days leading up to the kidnapping, they purchased a 25-foot sailboat, the seller of which later tipped off authorities regarding the parents’ plan. The father, his wife, and the two boys then proceeded to sail to Cuba. The couple arrived at the Marina Hemingway, a facility slightly west of Havana.

Upon the parents’ arrival, Cuban authorities informed the U.S. State Department of the family’s presence on the island. After such information was passed on, “constant communication” was maintained between U.S. officials and the Cuban Foreign Ministry. This level of contact, concern, and communication was an important step for U.S.-Cuba relations as there does not exist any sort of extradition agreement between the countries.

Law enforcement officers retrieved the family and brought them back to the U.S., where the father is currently facing a slew of criminal charges, including two counts of kidnapping, child neglect, false imprisonment, interference with child custody, and others. The grandparents have expressed deep appreciation for how the operation was handled, and have welcomed the young boys back.

The Law Office of Sandy T. Fox can guide you through a safe and effective resolution of your child custody issues. Studies estimate there are nearly 1,000 within-family kidnappings per day in the U.S. In these cases, there is roughly a 50 percent chance that the kidnapping will be committed by the mother or father.

Parental kidnapping is a traumatic event for the children and the custodial guardians, often resulting in long term emotional harm for all parties involved, and in some instances physical harm. State legislation (Florida Statute 61.45 & the Florida Uniform Child Custody Jurisdiction and Enforcement Act) and federal legislation (the Parental Kidnapping Prevention Act of 1980 & the International Child Abduction Remedies Act) have extended the degree of preventive measures and applicable punishment for those engaging in parental kidnapping. It is important to operate through the family court for any custodial issues you wish to dispute, whether you feel you deserve a higher degree of custody, or you don’t believe the person with custody should have such responsibility.
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A Tampa mother is reportedly mourning the loss of her disabled child who died not long after the State of Florida took custody of the teenager. According to the 59-year-old mother, the last time she saw her daughter alive was 12 hours prior to her death when she was loaded into an ambulance bound for Miami. The screaming girl reportedly rode alone in the back of an ambulance because her mother was not allowed to accompany her on the five hour trip. The daughter allegedly died the following morning due to dehydration and cardiac arrest.

Ironically, child welfare authorities reportedly removed the daughter from her mother’s home over concerns regarding whether the single mother could properly care for the child. The mother suffers from six herniated discs in her back and a diagnosis of carpal tunnel syndrome in both wrists. Despite a judge’s order and her mother’s pleas, the child who suffered from cerebral palsy and a deadly seizure disorder was placed in state custody and institutionalized.

According to a Miami Herald report, the mother became the subject of investigation after a home health aide made what later turned out to be a false report regarding the care the daughter was receiving at home. The daughter was purportedly removed to Tampa General Hospital pending the outcome of the investigation. About one month before she died, Hillsborough Circuit Judge Vivian Corvo applauded the care her mother provided. Judge Corvo ordered that the daughter be returned home and round the clock in-home nursing care be provided using state Medicaid insurance. Still, the state allegedly refused to return the daughter to her mother’s care and instead transported her to a Miami nursing home.

The mother is one of the approximately 4.1 million disabled parents throughout America who too often struggle to retain custody of their children. Nationwide, removal rates due to a parent’s physical disability are reportedly about 13 percent. For psychiatric disabilities, the rate allegedly climbs as high as 80 percent. In fact, two-thirds of states allow a child to be removed from a parent’s home based solely on parental disability. Although Florida law does not allow termination of parental rights on disability grounds alone, the mother’s physical disability may have played a role in the state’s custody decision here.

Who will care for your kids following divorce is an emotional topic and many parents worry about losing custody of their children. Sadly, disabled parents are reportedly at an increased risk for just such an outcome. In Florida, a family law judge will take into account a number of statutory factors when considering any child custody and visitation agreement or dispute. If you have questions regarding child custody matters, you should contact a skilled family lawyer to discuss your situation.
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According to the National Council on Disability, about one in ten kids in the United States have at least one parent who is disabled. In addition, about 4.1 million handicapped parents are reportedly caring for a child under the age of 18. Although the Americans with Disabilities Act was passed in 1990 to protect the rights of handicapped citizens, disabled parents throughout the country still allegedly face a great deal of difficulty maintaining custody of their children. More than half of states purportedly allow a parent’s rights to be terminated based on a real or perceived disability. In addition, up to 80 percent of parents who suffer an intellectual or psychiatric disability allegedly lose custody of their offspring.

Each state reportedly allows disability to be considered by a court when determining child custody issues. In some states, diseases such as cancer are also taken into account. Additionally, disabled adults purportedly face discrimination with regard to adoption in most cases. Robyn Powell, an attorney for the National Council on Disability, stated she believes individuals with a disability may have the ability to adjust to the stresses associated with becoming a parent more easily than others because they are already accustomed to adapting. Powell said such parents should be supported instead of punished.

Powell stated that the number of disabled parents across the nation is expected to grow over the next few years as many wounded warriors return from overseas deployment. She also reportedly believes both private and public organizations should work hard to support disabled parents who require additional assistance and to ensure that their parental rights are protected. According to Powell, child welfare organizations throughout the nation should begin to assume disabled parents are capable of raising their children despite that they may require additional community support.

The question of who will care for your children in the event of a marital split is generally an emotional one. Most parents worry about not only losing custody of their kids, but how much time they will have to spend with them throughout the week and on important dates such as birthdays. Since October 2008, divorcing parents in Florida must enter into a court approved time-sharing agreement that states exactly how much time a minor child will spend with each parent. In the alternative, a family law judge will create a time-sharing schedule for parents who cannot agree. A Florida family court will normally examine a number of factors when considering any child custody award or agreement. A hardworking family law attorney can explain the process in more detail.
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As the holidays near, many newly separated or divorced parents experience angst over the changed traditions and a possible separation from their children. Although a family law judge will determine where a former couple’s children spend each holiday, it is a good idea for separated or divorced parents to negotiate such matters with their former spouse. Mediators and parenting coordinators may make it possible for parents to come to an agreement and make it through the holidays without a lengthy court battle.

Karen D. Sacks, a licensed mental health and family counselor in West Boca, believes it is important for parents to listen closely to their children during the transition from a single to a dual household, especially during the holiday season. Sacks stated parents should ask for input from kids prior to making holiday plans even if they do not choose to follow all of a child’s wishes. Additionally, parents should keep in mind that many children of divorce become protective of their parents and are often concerned that one parent may spend the holidays alone.

According to Sacks, because children tend to take their cues from their parents, you should send your child off with a smile if your custody arrangement stipulates that he or she will spend the holidays with your former spouse. In such cases, Sacks stated, it is important to love your child more than you dislike your former husband or wife. By reacting to a child’s absence negatively, you will reportedly make being separated from you more emotionally difficult. In addition, making negative statements about your child’s other parent is normally extremely stressful on your kids. Similarly, grandparents who are angry over a divorce should not be allowed to bad-mouth your former spouse in front of the children.

Sacks believes all children recover from divorce at their own pace and maintaining an open line of communication with your kids is often key. Although you cannot continue as if nothing happened, you can ensure that you act like an adult. Despite that newly separated or divorced parents normally struggle with anger throughout the holiday season, it is vital for children to understand that the parental bond will not change no matter who they spend the holidays with.

Child custody is always an especially emotional subject, and most parents worry about how much time they will have available to spend with their kids following a divorce. Since October 2008, divorcing parents in Florida must enter into a time-sharing agreement. A time-sharing agreement will state exactly how much time a minor child will spend with each parent on weekdays, weekends, school breaks, and holidays. If a child’s parents cannot reach an agreement regarding a time-sharing schedule, a family law judge will create a schedule for them. In Florida, a family court will examine a number of factors under Florida law when considering any time-sharing agreement. Contact a capable family law attorney for more information.
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An effort is currently underway in Florida to encourage communication between birth parents and their children who were removed from the family home. Because more than half of all foster children in Florida will reportedly be returned to the home of at least one biological parent, the Florida program is designed to allow parents to maintain meaningful contact with their children in the interim. Additionally, the program purportedly provides birth parents with an opportunity to continue to have a voice in how their children are raised. Similar programs in other states such as Oregon and New Hampshire also provide birth parents with parental mentors or legal representation.

Most parents who lose custody of their children in Florida are reportedly battling a drug or alcohol addiction. Others allegedly became abusive or were affected by extreme poverty. Under the program, family law judges and child welfare workers determine how much parental contact with children in foster care is appropriate. Additionally, biological parents are required to take steps towards rehabilitation.

Depending on the situation, parents who are allowed to maintain contact with children living in foster care may do so over the telephone or in person. Foster parents are also encouraged to take steps to help children with the transition between homes and speak positively about the child’s biological parents. According to Kendall Marlowe of the Illinois Department of Children and Family Services, programs such as the one in Florida often eliminate the issue of older foster children running away in order to meet with a birth parent illegally. Marlowe stated the organization actively encourages contact between birth parents and children who are removed from the family home whenever possible.

One Miami foster parent said her foster training failed to address the issue of how children placed in her care would maintain contact with biological parents. Although initially reticent to interact with the parents of her foster children, she reportedly changed her mind after Florida began to formally encourage such contact. She stated it often helps the children to interact with a loving biological parent.

Family law in the State of Florida is constantly evolving and the question of who will care for your children is always an emotional subject. If you are faced with a family law matter such as a child custody dispute or an adoption, you should consult with an experienced family law attorney.
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Miami Heat superstar Dwyane Wade’s lengthy custody battle returned to a Chicago courtroom recently after his ex-wife, Siohvaughn Funches-Wade, allegedly refused to return the couple’s two sons over Father’s Day weekend. When Funches-Wade reportedly declined to turn the children over to Wade’s sister for transport back to Miami, she was arrested and charged with misdemeanor child abduction, interference with visitation, and resisting arrest. In response to the incident, Wade, who was previously awarded sole custody of the children by a Cook County family court, filed a petition requesting that Funches-Wade’s right to visitation be suspended.

Instead of suspending Funches-Wade’s visitation rights, a Cook County judge ordered that all visits during the next four months take place in Florida where the children currently reside with their father. According to Funches-Wade, she has not had uninterrupted access to her children since she was arrested. Her attorney, who recently asked the court to allow him to leave the case, stated it was not typical for law enforcement officers to enmesh themselves in a child custody case. He reportedly believes authorities responded to the incident as a result of Wade’s celebrity.

Wade stated that, despite his recent petition before the court, he would like for his former wife to remain in the boys’ lives. Funches-Wade claims she did not return the children at the specified time due to a severe and debilitating asthma attack.

The custody of a couple’s children is always an especially emotional subject, and most parents worry about how much time they will be allowed to spend with their kids following a divorce. In Florida, a parent who seeks to modify a child custody order must show that one of the parent’s circumstances has changed in a substantial way. Additionally, the best interests of a couple’s children must also justify any requested custody modifications. A Florida family court judge will examine a number of factors under Florida law when considering any request to modify custody. Those factors include the child’s age, the child’s own preference, each parent’s fitness to raise the child, and which parent is primarily responsible for the child’s upbringing. Any allegations of child abuse, neglect, or abandonment, the moral fitness of each parent, and any evidence of sexual violence will also play a factor in a judge’s child custody decision.
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Summer means a lot of things including warmer temperatures, vacations, and a break from school for most children. To divorced parents, however, summer can be a source of contention and may make you want to revisit your time-sharing agreement. Former spouses may disagree regarding many aspects of a child’s summer break, but vacations can become especially problematic for divorced parents. Disagreements over the location and timing of vacations can easily lead to larger battles. By following a few simple steps, it is possible for divorced parents to avoid a summer vacation battle.

First, parents can plan ahead by creating a vacation schedule. Generally, when parents fail to make a vacation schedule either parent may take a child anywhere that is not restricted by the former couple’s custody agreement. By discussing parental concerns regarding the location, timing, and other vacation matters, former spouses have to opportunity respond to one another’s concerns before a disagreement arises. Once divorced parents come to an agreement regarding a vacation schedule, it is also important to follow the agreed upon plan where possible. If parents cannot agree on a vacation schedule, mediating the matter in front of a neutral third-party such as a child custody attorney may also be an option to consider.

No matter the subject, it is vital for divorced parents to maintain an open line of communication with one another. If vacation plans that involve children happen to change, the vacationing parent should notify their child’s other parent s soon as possible. For safety reasons, a former spouse should be kept informed of the location of the vacation, the length of the holiday, and the best way to reach their child in the event of an unexpected emergency. By doing this, the vacationing parent can also avoid explaining to a family court judge why important information regarding a child’s whereabouts was not disclosed to the child’s other parent.

Where necessary, a parent may choose to involve the courts in a dispute over vacation time. Normally, a child custody agreement will outline the amount of vacation time each parent will have with their children as well as the amount of notice that must be provided to the other parent prior to leaving on a trip. Travel locations may also be limited by a time-sharing agreement. Even where parents agree upon a vacation schedule, they may choose ensure an agreement is binding by submitting it to a family court for approval.

Since October 2008, divorcing parents of minor children in Florida must enter into a time-sharing agreement. A time-sharing agreement will state exactly how much time each parent will spend with their child including overnights, weekends, school breaks, and holidays. If a child’s parents cannot reach an agreement regarding a time-sharing schedule, a family court will create a schedule for them.
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Increasingly, former spouses in South Florida are utilizing the services of a parenting coordinator. A parenting coordinator is a type of mediator who ensures parents comply with a written parenting plan. The aim of parenting coordination is to encourage communication between divorced parents and prevent their children from becoming a victim in their disputes.

In 2009, the Florida Legislature passed a law that allowed parenting coordinators to have a legal role in disputes between divorced parents. Under the law, a judge can appoint a trained parenting coordinator to mediate any disputes about shared responsibility of a former couple’s children. A parenting coordinator’s role is to help former spouses establish a detailed written plan for a variety of issues such as parental responsibility for certain child costs, child transfer locations and times, and the role of extended family members in a child’s life. When the law was passed, Florida had about 200 trained parenting coordinators. There are now approximately 300 parenting coordinators located throughout the state. Around 15 coordinators currently work in each of Florida’s 20 judicial circuits.

According to Fort Lauderdale family mediator Debbie Sedaka, time-sharing conflicts frequently account for the largest number of parental quarrels. Sedaka stated disagreements between divorced parents often break out during a child’s transfer. She believes a parenting coordinator’s most important role is to teach divorced spouses how to communicate with one another in a way that does not expose their children to more conflict. Pembroke Pines psychologist Pamela Silver said the job of a parenting coordinator is often a stressful one. She also stated it can be extremely difficult to act as a parenting coordinator in circumstances where parents cannot place the needs of their children above their own.

Still, an increasing number of judges and social service organizations believe divorced parents engaged in frequent conflicts can benefit from an outside mediator. Psychologist Jill Schwartzberg, who was recently trained to be a parenting coordinator for a family service organization near Boca Raton, stated it is necessary for parents to find a way to resolve their conflicts in a peaceful manner. Despite the sometimes difficult nature of the role, Schwartzberg believes it is important for parenting coordinators to do their best to protect the emotional well-being of children who come from high conflict families.

In Florida, a child custody agreement is referred to as a time-sharing schedule. A time-sharing plan will establish in writing which parent a child will spend weeknights, weekends, overnights, holidays, and school breaks with. If divorcing parents are unable to agree on a time-sharing schedule, a family court judge will create a time-sharing plan based upon a parent’s moral fitness, any evidence of neglect or abuse, and a variety of other statutory factors. If you are currently engaged in a time-sharing dispute, you should contact an experienced Florida child custody lawyer to discuss your rights.
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