The Importance of Establishing Paternity in Child Custody and Support Cases

It seems almost self-evident that children thrive more in homes that have mothers and fathers in place to support and guide them. Ideally, all children would have the chance to live with both parents in a loving environment, but reality is often much harsher. Couples cannot always stay together, and marriage does not automatically guarantee happily ever after. For children born to unwed parents, the situation is complicated by the fact that unmarried men are not assumed to be the father of a child born to their partners. This gap in legal recognition can create problems when it comes to child custody and support issues. All legal parents have rights and obligations over their child, but without this designation, there is no way to exercise or enforce these legal measures. Florida law has several options available to prove a child’s paternity, some of which are voluntary and others that can occur on an order from a court. If the mother wishes to seek child support, or the father wants to secure visitation, paternity must first be established. Consequently, this issue is of critical importance to the wellbeing of the child.

Acknowledgement of Paternity

The simplest and easiest way to establish paternity requires the parents to file an acknowledgement of paternity with the Florida Department of Health, Office of Vital Statistics. This form must be signed by both parties in front of two witnesses or a notary public. Filing this form creates a legal presumption that the man signing it is the child’s father, and is assuming all the rights and responsibilities of a legal parent. Either party has 60 days from the time the form was signed to rescind this acknowledgement. After this time, it can only be challenged in court on the basis of fraud, duress, or mistake, which is very difficult to prove.

DNA Testing

If the alleged father is challenging paternity or refuses to take responsibility for the child, it may be necessary to obtain a DNA test to confirm paternity. If the mother is just seeking child support, and the alleged father has no interest in participating in the child’s life, the Department of Revenue will assist with genetic testing without the cost of going to court. If, however, the father wants an active role in the child’s life, the paternity dispute would need to be settled in court. The judge would order the mother, alleged father, and child to submit biological samples to a qualified laboratory for analysis. Results that state the statistical probability the man is the father by 95 percent or higher creates a presumption of paternity that can only be challenged with additional testing. Once paternity is established, the mother can petition the court for a child support order, and the father would have right to ask the court for custody and visitation rights.

Putative Father Registry

Finally, if man believes a woman is pregnant with his child, but they are unmarried, and he is worried she will give the child up for adoption without his knowledge, Florida has a registry he can access to preserve his rights. The Florida Putative Father Registry allows the unmarried man to add his name to registry, which means he is claiming paternity, so that he preserves his right to receive notice of any impending adoption. With this information, the man can oppose adoption and seek custody of the child if he so desires. Importantly, he can claim paternity at any time before the child’s birth, but this right terminates once a petition to terminate parental rights is filed.

Get Help

Whether you need to establish paternity for child support purposes or to claim parental rights, work with a family law attorney on this issue to ensure your legal rights are fully protected. The All Family Law Group, P.A. in Tampa is highly experienced in these matters, and can advise you on your options.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+

When and How a Parent Can Change a Parenting Plan

Discussing when and how to divide child custody and visitation is one the more contested issues when couples decide to separate and divorce, as it is a topic central to being a good and present parent. Forming compromises that adequately address the needs of the child and the rights of the parents is a difficult process, but Florida law requires all divorcing parenting to create a parenting plan. A parenting plan lays out the duties and responsibilities of each parent and includes a time-sharing schedule so that both parents know when the child will stay in each household. Crafting a parenting plan that will work through all stages of a child’s life is exceedingly hard because inevitably circumstances will arise that greatly change the needs of the child and the ability of the parents to maintain the same arrangement. Wanting to make changes to custody and/or time-sharing schedules during the school year can be especially difficult as parents try to balance what works for all parties with the need to provide consistency for the child. However, sometimes changes are necessary, but in order to protect the interests of the child and rights of parents, modifications of parenting plans should be approved by the court.

Basic Standard for Modification

The legal system always wants to promote cooperation among parties because it lessens the likelihood of a dispute, so if the parents are able to agree on changes to the parenting plan, they are not technically required to get court permission. However, these changes should be memorialized in writing and submitted to the court to ensure each parent knows what their obligations are, and to protect against one parent later claiming there was no agreement. If the parents cannot agree on changes or a parent refuses to even consider altering the current arrangement, the only option is to get a court order modifying the parenting plan. Note that a judge will not decide on a petition for modification until a hearing is held where each party has an opportunity to present his/her side.

Florida law states that any change to parenting plan or time-sharing schedule is only permitted if there is a “substantial, material, and unanticipated change in circumstances.” This standard is fairly ambiguous, and what it means in practice can vary from judge to judge, but basically, there needs to have been some change that is fairly permanent the parties had no way of anticipating when the original parenting plan was created. However, like all family law cases, the ultimate deciding factor is what in the best interests of the child.

Circumstances that Warrant Changes

Because the statute does not define what a substantial, material, or unanticipated change is, courts must look at the facts of each individual case to determine if a change is justified. Looking at past cases, circumstances that would likely justify a modification of the parenting plan include:

• efforts by one parent to alienate the child from the other parent;
• failure to comply with the parenting plan;
• a parent’s interference with other parent’s time with the child;
• blocking a child from calling the other parent;
• making false accusations of abuse against the other parent; and
• misleading the court in order to gain custody.

Contact a Family Law Attorney

If you have concerns about your current parenting time plan or wish to make changes, speaking with a knowledgeable family law attorney can help by informing you about your legal options and the procedure that is best suited to meet your goals. The Tampa Bay law firm of All Family Law Group, P.A. will work to tailor child custody and visitation arrangements that are best for you and your child.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+

The Impact of Domestic Violence on Divorce

Living under the specter of domestic violence is one of the most crippling set of circumstances a person can experience. Never knowing what will set off an abuser leaves the victim in a perpetual state of fear that makes taking action almost impossible. Taking the steps to leave this situation requires a lot of courage, especially if the victim plans to file for divorce. It is frequently necessary for abused spouses to move out of the marital home and away from the reach of the other spouse prior to informing him/her about the divorce case. It may seem that domestic violence is mainly the problem of the poor and unemployed, but it happens in every economic class. A recent news story about the divorce of state Rep. Alan Grayson discusses allegations of domestic abuse made by his former spouse throughout their 20-year marriage. The state recognizes the vulnerable position victims are in physically and emotionally, and as a consequence, included provisions in Florida divorce law that attempt to erect safeguards to protect battered spouses. An overview of the law on this issue will follow below.

Parenting Plans

The most direct way to deal with domestic violence is to ask a court for a protective order that demands the alleged abuser stay away from the victim. But, this procedure does not take into account the parental rights of the alleged abuser or the risk posed to an abuser’s children by maintaining contact. Consequently, the intersection of divorce and domestic violence mainly relates to the type of relationship and access the abusive parent should have to the child. Parenting plans are the documents that lay out the responsibility and authority each parent will hold over the child and how much time the child will spend with each. If there is a lot of dispute over these issues, which could certainly happen in this type of situation, the standard protocol is to order the parents to parenting coordination where a third party helps the parents resolve the disagreements. In families with domestic violence however, this process is not an option unless both parents agree to participate and are given an opportunity to consult with a lawyer or domestic violence advocate before giving consent. Further, the court will thoroughly probe the consent given by each party to make sure it is voluntary and freely given.

A court must approve a parenting plan before it is enforceable, and the overriding factor in a judge’s analysis of appropriateness of an arrangement is the best interests of the child. Normally, both parents are given some measure of parenting time unless there is something that would be detrimental to the child. In that vein, Florida law specifically states that evidence of or a conviction for domestic violence is automatically seen as a detriment, and this could result in a judge limiting or denying contact between the abuser and the child depending on the circumstances.

Child/Parent Relocation

Once the divorce is finalized and the parenting plan in place, if the parent with primary responsibility for the child wants to relocate, the parent must first receive permission from the court. One factor a court uses when evaluating whether to give permission for relocation is history of a domestic violence by either parent since the decision ultimately rests on what is in the best interests of the child. However, if one parent relocates to escape domestic violence, the move is not viewed as a violation of the parenting plan.

Get Legal Advice

If you are seeking a divorce from a marriage with domestic violence, it is important to work with an attorney knowledgeable about effects of domestic violence on divorce. Protecting you and your family from further violence is of paramount importance, and an attorney will know the options available to keep your spouse away from you. The Tampa Bay law firm of All Family Law Group, P.A. has extensive experience in areas of family law, including domestic violence, and can help you get the fresh start you need.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+

Resolving Divorce Issues Outside of Court

When people usually think about divorce, they picture a courtroom with the parties appearing before a judge to argue their respective positions. This is the image of the legal system in America – working out disputes in front a judge who makes the final decision on issues like who is at fault, should pay money, or receive custody of a child. Given that divorce is traditionally seen as a contentious process that often requires the parties to openly contest the demands of the other, it makes sense that alternative ways of resolving disagreements are often unknown, let alone discussed. However, there are numerous advantages to settling divorce concerns in forums outside the stressful environment of the courtroom. If parties want to preserve their relationship in order to better co-parent a child or continue operating a family business together, choosing a less combative proceeding presents a better opportunity to achieve that aim. In fact, Florida recently passed legislation that formalizes a collaborative divorce process that is intended to facilitate amicable dissolutions.

Mediation

Mediation is a process whereby a neutral third party attempts to help individuals in a legal dispute come to an agreement. Essentially, a mediator works to help the parties communicate more effectively and concede a compromise if it is necessary to prevent an impasse in the process. It is common for each party to have his/her own attorney present at mediation sessions to ensure legal interests are not unnecessarily given away. This procedure is voluntary, and either party can opt out at any time in favor of pursuing a traditional suit in court, but some of the advantages of this method include:

• lower cost;
• faster timeline;
• parties can choose the mediator;
• facts of the case remain private and confidential; and
• complete control over the outcome.

In addition, it is worth noting that Florida law permits a judge to refer parties to mediation in cases where the parties are disputing parental responsibility, visitation, or child support, so this is a process that is already recognized as beneficial by the traditional legal establishment.  In Hillsborough County, mediation is mandatory before the parties can have a hearing before a judge.

Collaborative Divorce

Finally, the Florida legislature recently passed a law that formalizes the operation of the collaborative law process for family law matters in this state. This method offers a non-adversarial approach to conflict resolution that is intended to preserve the parties’ relationship. It is a voluntary settlement process that employs the services of mental health and financial professionals, as well as specially trained attorneys, to help the parties collaborate towards the satisfactory settlement. The parties enter into a participation agreement wherein they agree to forego filing a standard divorce petition while engaged in the collaborative process. Further, if the parties are unable to come to an agreement in this forum, the attorneys must withdraw their representation, and cannot participate in the court case.  Usually this method is employed only if there are mental issues involved, alimony, real property and personal property which require experts to help resolve the issues.  If not, then it is not necessary to go through this process and one attorney can be utilized throughout the proceedings.

Consult a Family Law Attorney

If you are seeking a divorce, regardless of whether you can or cannot come to an agreement, a case will have to be filed with the court.  And even if a case is filed before you come to an agreement, this does not mean you cannot amicably resolve your differences thereafter and have an uncontested divorce.  A family law attorney can advise on all the alternative dispute resolution options, and help guide you to the type that is most advantageous for you. The Tampa Bay All Family Law Group, P.A. is experienced in adversarial and non-adversarial approaches to divorce, and can adapt to either approach if circumstances change. Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+

Navigating Divorce While Serving in the Military

Anyone with connections to military service knows about the sacrifices such a commitment requires of both the individual in the military and his/her family. Being away from home and loved ones for extended periods with restricted communication is likely to create stress in close relationships and can loosen the bonds of married couples. This stress is even higher when the individual is serving in a combat zone. Unfortunately, these prolonged separations sometimes lead to divorce, and recent tabulations of divorce rates among active military personnel show that while the rate is declining, it is still higher now than it was 15 years ago. Obviously, divorcing while on active duty presents unique challenges that can make the divorce process a little more complicated, but federal and state laws are in place to help military personnel make this transition by affording them special protections and exceptions to certain rules. An overview of how a military divorce differs from a civilian dissolution will follow below.

Procedural Issues

Typically, a divorce petition is filed in a person’s resident state, but active members in the military often do not have stable residency since many live on military bases and are subject to transfer on a regular basis. Consequently, many states, Florida included, will allow military personnel to file for divorce once he/she is stationed at a base for at least six months. Further, if the person lived in Florida prior to the start of military service, and intends to return to the state after his/her service is over, the individual can claim Florida residency for purposes of filing a divorce petition. Of course, if the other spouse lives in Florida, he/she always has the option of filing here.

In addition, because military personnel run the risk of missing filing deadlines due to delayed communication, federal law permits courts to delay proceedings until the active service member’s tour of duty is over, which includes the 60 day period following deployment. This law prevents a court from granting divorce without the knowledge of the individual in the military. Military personnel always have the right to waive this delay if they are the party instigating the divorce proceedings.

Child Custody

Further, once a divorce is granted, the other party cannot petition for modification of parental time-sharing and/or custody if the person in the military is on active duty, which will affect his/her ability to comply with any changes to the established arrangement. In these situations, courts cannot issue new orders related to child custody or time-sharing schedules while the person is on active duty, although judges can order temporary modifications if it is in the best interest of the child.

Property Division

Finally, when it comes to property division, the majority of a couple’s assets and liabilities will be divided according to Florida law, including military retirement benefits for the time the parties were married in which the spouse was in the military, regardless of the time married.  There is a federal law that limits the right of the non-military spouse to the military member’s retirement benefits if the couple was married for at least 10 years, and the military member served for at least 10 years during the same period.  However, Florida law supersedes this law and the amount determined will be paid directly to the former spouse, and not through the military.

Talk to a Divorce Attorney

Going through a divorce is a stressful event in and of itself, but when combined with military service, it quickly becomes overwhelming. Working with an attorney knowledgeable in the law that applies to military divorces is critical to protecting your rights and obtaining a divorce in a timely manner. The Tampa Bay law firm of All Family Law Group, P.A. has the necessary skill in these matters, and can help you through this process.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+

Key Terms Everyone Getting Divorced Should Know

Making the decision to divorce a spouse is one of the largest, hardest, and most far-reaching acts a person can make in their life. The impact of divorce goes far beyond the couple, especially if they have children, and extends to family and friends who may feel compelled to choose between the two parties. Given the emotional turmoil that accompanies divorce, it may be tempting to tune out and disassociate from the legal proceedings once a divorce lawyer is hired to handle the case. However, it is important to be engaged in the divorce process, despite the hard emotions, because of what is at stake. While a divorce attorney can represent the interests of a divorcing party, this person must maintain an active and engaged role throughout the process to ensure the outcome is in keeping with the party’s personal and familial goals. Further, it can be easy to assume one already knows the necessary information about divorce because of its constant presence in society, but unless a person has previous experience or legal training, there is a risk of oversimplifying what getting divorced actually means. Consequently, having a basic foundation in the key terms that come up in every divorce will help to prepare individuals on what to expect, which allows for thoughtful and informed decision-making.

What Is Divorce?

Divorce, or dissolution of marriage, legally severs the union between a couple, and puts them back in the same state they enjoyed as single individuals. Essentially, this process is the legal termination of a marriage, and how couples disentangle their lives from one another. Divorce is initiated when one spouse files a petition in court, and is concluded when the spouses agree on the division of property and responsibilities, or if the parties cannot agree, when the court forms the terms of settlement.

Types of Divorce

While it may appear that all divorces proceed in the same way, more or less, there are, in fact, several different types that affect how long it will take to finalize the divorce and how complex the case will be.

• Fault vs. No Fault Divorce – Florida, like most states, has no-fault divorce, which means it is not necessary to prove that the actions of one spouse caused the end of the marriage. Instead, all that is required is to state that the marriage is “irretrievably broken.” Florida retains one basis for a fault-based divorce based on the mental incapacity of a spouse, but this provision is rarely used because the incapacity must exist for at least three years and be confirmed by a judicial order.
• Contested vs. Uncontested Divorce – In addition to determining the grounds of divorce, one also has to assess whether the divorce is contested or not. A contested divorce means the parties do not agree on all issues, such as property division, support, or child custody, and the parties will need to file a standard divorce petition based whether they own property together or have children. Florida also offers a simplified divorce for couples that have no disputes or minor children together. Simplified divorces move through the system much faster, but require the parties to waive their right to a trial and to seek alimony.

Common Issues

Financial Concerns: Because married couples tend to intermingle income, property, and debts, it is necessary to determine how these areas will be divided in divorce. Specifically, divorcing couples must decide:

• how to divide assets, such bank accounts, stock portfolios, and pensions;
• how to divide debts;
• how to handle jointly-owned property, like the marital home; and
• whether to pay alimony to one spouse.

Children: Disagreements about children account for most of the disputes in divorce, as parents attempt to work out:

• Custody;
• child support; and
• parenting plans.

Talk to a Divorce Attorney

While this article gave you a brief overview of the components of a divorce case, each case is unique and could have issues not covered here. A divorce lawyer can advise you about the particular law that applies in your case, and help you get the outcome you want. The All Family Law Group, P.A. will walk you through the divorce process step-by-step as you begin the next phase of your life.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+

The Lesser Known Option to End Marriage: Annulment

When married individuals consider ending their marriage divorce is usually the first and only option they explore. This default starting point makes sense when one thinks about the lack of other viable options discussed and/or known by most people. In addition, many people look to divorce as the easiest available option, and avoid other possibilities for ending a marriage out of a desire to exit the relationship quickly. However, while Florida does not offer couples the option of a legal separation, statutes and law established through court cases do permit couples to annul a marriage in certain situations. A natural question that emerges for most people when this topic comes up is why they should choose this over divorce. Ultimately, the principal advantage of annulment is that it legally treats an annulled marriage as if it never existed. And, there are circumstances where a person would rather have no legal association with a past partner that justifies this more involved step. A recent story on Fox News serves as an example of a spouse that would have reasonable grounds for seeking an annulment. A Zephyr Hills man assumed a fake identity for over 20 years in order to avoid a second divorce. His new wife had no idea her husband was using a false identity until police appeared at their door to arrest him for identity theft, and she is now left to deal with the legal and emotional fallout of his decision.

Void Marriages

As a preliminary point, it is important to note that Florida does not have specific law on annulment. Rather, it has statutes and case law that establish when a marriage may be declared void or voidable. Void marriages are unions that were invalid from the start and can never be legal. Voidable marriages, on the other hand, were not necessarily invalid from the start but potentially could be. All void marriages can be annulled, but only some voidable marriages may be. Some examples of void marriages under Florida law include:

• bigamy – marriage to more than one person at the same time;
• incest – marriage to a blood relative;
• underage couples – 18 is the minimum age to get married unless there is consent from the couple’s parents. Note that an exception can be made if the couple is expecting a child; and
• permanent incompetency – marriage to a person unable to give informed consent to the marriage due to permanent mental incapacity.

Voidable Marriages

Obtaining an annulment for a voidable marriage is a more difficult process because the allowable circumstances are more complex and subjective. Further, the law in this area is exclusively based on past court decisions, which leaves the reach and application of the law open to interpretation. However, the following grounds are historically recognized as sufficient to justify annulling a marriage:

• sham or fraudulent marriages, such as to gain legal immigration status, public benefits, or Social Security. There must be no intent to live together as married couple by one spouse, with the other being entirely innocent;
• lack of consummation, but this claim should be made relatively early in the marriage to have a convincing argument; and
• concealment, such as one spouse hiding the fact that he/she cannot have children.

Consult a Family Law Attorney

Annulment cases are very complex, and typically involve very complicated sets of facts that require an experienced lawyer to effectively present in court. The All Family Law Group, P.A. in Tampa Bay understands the law and resource investment needed to win these cases, and can help you determine if annulment is right for you.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+