What Family Law is about
Family Law often intersects with other areas of law that focus on matters in family relationships like real estate, bankruptcy, wills & trusts, corporations, business law, criminal, dependency, etc. Issues involving family relationships hit close to home and having an experienced, considerate attorney can help maintain the civility and expedited progress of handling these situations. Family law does encompass a variety of different areas within the umbrella, like: divorce, alimony, child custody, adoption, modification, relocation, domestic violence, child support, paternity, father’s rights, domestication of foreign (out of state) judgments, etc.
Family Law regarding children
The best interests of children regarding their care, environment, and support are the most important aspects of judicial determinations in Family Law. If you are looking to grow your family through adoption, support your children and their development, or protect a child in an unfortunate situation, our Attorneys and Counselors at Law can guide you through these processes and circumstances.
Any individual may be an adoptive parent in Florida. The 3 primary types of adoption are private domestic, foster care, and step-parent. While there may be certain measures through individual agencies, there is a standard set of criteria outlined by the state that interested adoptive families need to meet. Typically the process includes an orientation session, an in-depth training program, a home study, a background check, application approval, match-making between minor and adoptive parent(s), placement supervision, and legal finalization of the adoption.
Sometimes there may be situations of child neglect, abuse, or abandonment that can terminate parental rights justly or unjustly. The Florida court’s typical goal is for the reunification of a parent with a child. The court will seek certain actions to be taken by the family to ensure the child’s safety and welfare in these cases such as: classes teaching parenting skills, social service guidance, and completion of a case plan.
Temporary / concurrent custody/care (extended family / grandparents: chapter 751)
Simply put, a Guardian Ad Litem is an advocate for the child.
Parent Coordinators
Parent Coordinators are hired when parents are having difficulty with shared parental responsibility or fulfilling their obligations in a parenting plan. The Parent Coordinator can be a person selected by the parents or ordered by the court to assist in facilitating a better relationship for the parents as it relates to caring for their children, who are sadly stuck in the middle of feuding parents.
Family Law in pre- and post-marital relations
Marriage is supposed to be a happy unity between two parties, but sometimes this bliss fades and results in a dissolution of the marriage. The rate of dissolution of marriages was 3 per 1,000 couples in Florida as of 2020. Prenuptial agreements act as contracts between parties in these cases to protect both parties’ interests, debts, and investments.
Prenuptial and postnuptial agreements
Prenuptial agreements only become effective upon the marriage of the parties and must be signed in writing by both parties, with witnesses. The best practice is in the presence of a notary and court reporter. Prenuptial agreements may cover, but are not limited to, rights and obligations related to property, life insurance, and spousal support. Child support may not be negatively affected by prenuptial agreements. Agreements may be amended during the marriage with written consent from both parties.
Postnuptial agreements in the case of a dissolution of a marriage cover alimony, childcare, parental responsibilities, and division of assets, property, and debts. These are considered contracts and can be signed during the marriage. This agreement establishes the dissolution terms for the court without the need for judicial determinations.
Marriages in decline can be taxing or even traumatic for either party and their children. Negotiations and determinations need to be established regarding the division of assets, debts, property, childcare, and parental responsibility. The same rules are applied to same-sex dissolution of marriages. The three main ways to dissolve a marriage in Florida are through a “Regular Dissolution of Marriage” a “Simplified Dissolution of Marriage” or through the “Collaborative Process”.
Complex asset litigation / property division - equitable distribution
Alimony
Family Law in child support and paternity cases
It is important to keep a cool head during a separation and approach negotiations civilly.
Time-sharing (custody) and parental-responsibility
Time-sharing and parental responsibility is a right for both parents to take part in for their children. This means the rights, responsibilities, joys, and achievements of their child(ren) unless otherwise deemed to be detrimental to the child(ren). Parenting plans are required in all cases of a dissolution of marriage involving children. These plans must include specified schedules of time shared between parents and management for each parent regarding daily tasks and responsibilities in the upbringing of the child(ren). Healthcare, education, and other activities need to be detailed in the parenting plan and who is responsible for managing these. Communication methods and technologies used in communication with the child(ren) will need to be provided in adequate detail within the plan.
Paternity and father’s rights
In Florida, there is no legal preference between maternal or paternal rights. Children have the right to know who their legal father is. This can be established voluntarily during the birth of the child and by a court order. Establishing paternity provides benefits to the mother, father, and child in terms of insurance, financial or government support, and medical history. Paternity needs to be established for the father to have access and input for parenting plans, time-sharing and parental responsibilities, child dependency regarding taxes, and medical or pregnancy expenses. Unmarried Fathers should always obtain their rights through a court order, even if they are in a relationship with the Mother at the time of birth. There are so many reasons that the Father’s rights must be established for the benefit of the child.
Relocation
Relocation in the state of Florida means changing the primary residence further than fifty (50) miles from the original residence for longer than sixty (60) consecutive days with the intent to relocate. This does not include a temporary change of residence for medical, vacation, or educational purposes. Where children are concerned in relocation, an agreement needs to be signed by both parents and other individuals who are entitled to time-sharing with the child(ren). Parenting plans will need to be modified to accommodate time-sharing and parental responsibilities. Agreements must include the date of the intended move, the contact information (phone number, address, or city and state), and detailed information for the relocation.
If there is an objection to relocation, a written and signed document must be filed with the county clerk and served to the individual seeking relocation with the child(ren) within twenty (20) days. Temporary injunctions may be filed against the relocation or for the return of the child(ren). Factors that are considered when an objection is filed include, but are not limited to:
- the age and developmental stage of the child(ren)
- the child(ren)’s preference
- reasoning behind the relocation (employment, education, well-being of the child(ren), future development of the child, and more)
Again the relocation must be in the best interest of the child(ren). The statute is very specific about how the Petition must be filed and served on the non-moving parent.
Injunctions and foreign judgements
Injunctions
An injunction, commonly known as a restraining order, is a court order preventing another individual from having contact with you, the petitioner. Injunctions serve as protection from contact, violence, or threats of violence against you or your property. This can be filed personally or by family or household members. The 4 types of injections that can be filed are domestic violence, sexual violence, dating/stalking violence, and repeat violence. Depending on the relationship, current or past, between the petitioner and the individual, and the events that occurred will aid the courts in determining the correct type of injunction.
In Florida, there is no legal preference between maternal or paternal rights.
Domestic violence
Domestication of foreign judgments
In order to give Florida Court the ability to enforce a foreign judgment it must be domesticated in Florida. There is a very specific procedure to have this done and Florida must be the correct jurisdiction. To have a foreign judgment modified there has to be a process between the Florida judge and the Judge from the original jurisdiction to determine which county/state/country shall have the ongoing jurisdiction over the parties, subject matter, and/or children. Foreign does not necessarily mean out of the country, it just means outside of where the original jurisdiction is from where you want it to be “transferred” or enforced.
Affirmative Defenses
In Florida, Family Law does have its own Rules of Procedure. However, a large majority of them mirror the Florida Rules of Civil Procedure. Therefore, as a family law practitioner, or a pro se litigant, one must understand both civil and family law procedure to litigate their case properly. One area that does not really come up that often is one of Affirmative Defenses filed with the Answer to a Petition. If you simply ignore them, the affirmative defenses are deemed denied with no further action needed. However, If you want to “use” later the information of why they are “denied” you must plead your affirmative defenses to their affirmative defenses. This preserves your arguments later. The same as if you know you cannot gain relief for something you do not plead. You cannot use your defense to their affirmative defenses later if you do not respond timely and plead your affirmative defenses in response. It is important for you to discuss with your client the potential reply to the affirmative defenses. Make sure to investigate whether there are facts to avoid them. Also, be sure to reply to those affirmative defenses, when necessary, in a timely response. If you choose not to respond, you may be waiving arguments for your client that may have been fruitful in the trial.
If you need assistance replying to or asserting Affirmative Defenses in your case, we can help.
When you’re going through your worst, we are at our best!
No matter what legal challenge you may face, our family law attorneys are committed to resolving your challenge in the way that makes the most sense for you and your family.
The Attorneys at Schwam-Wilcox & Associates are skilled problem solvers and we utilize the litigation model or the collaborative model as the facts warrant. Although we are aggressive when required, we are skilled at determining what style of litigation would benefit our client’s needs and goals most effectively and efficiently.
Our founding attorney, Camy B. Schwam-Wilcox, is a former criminal prosecutor who has participated in trial practice since 2000. All of the attorneys and staff at Schwam-Wilcox & Associates are dedicated to our clients and we strive to reach a positive resolution for each of them through family law mediation, collaborative law, or litigation. Our attention to detail and dedication to each client is what makes our family law firm the firm you want to make YOUR family law firm.
When you’re going through your worst, we are at our best! Discuss your family law case with a skilled attorney by calling 407-245-7700 today or complete the short contact form below. Our Lawyers are ready to help!
